Punishment and Control in Historical Perspective

Punishment and Control in Historical Perspective Edited By

Helen Johnston

Punishment and Control in Historical Perspective

Also by Helen Johnston PRISON READINGS A Critical Introduction to Prison and Imprisonment (co-edited)

Punishment and Control in Historical Perspective Edited By Helen Johnston University of Hull, UK

Editorial matter and selection © Helen Johnston 2008 Individual chapters © their respective authors 2008 Cover image photo by Christian Bailey This photo was taken at Kilmainham Gaol Museum, Kilmainham, Dublin, Ireland All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2008 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN-13: 978-0-230-54933-3 ISBN-10: 0-230-54933-0

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Contents Acknowledgements

vii

List of Abbreviations

viii

Notes on the Contributors

ix

Introduction: Histories of Punishment and Control Helen Johnston

Part I

Theoretical Perspectives

1

13

1

Modernity, The New Republic and Sing Sing: The Creation of a Disciplined Workforce and Citizenry Michael Fiddler

15

2

Reconceptualising Social Control: A Case-Study in Gender, Punishment and Murder Anette Ballinger

34

3

An Honourable Regime of Truth? Foucault, Psychiatry and English Criminal Justice Tony Ward

56

Part II

Penal Policy, Prison Practice and Discourses on Offenders

75

4

Moral Guardians? Prison Officers, Prison Practice and Ambiguity in the Nineteenth Century Helen Johnston

77

5

The Man, the Machine and the Myths: Reconsidering Winston Churchill’s Prison Reforms Jamie Bennett

95

6

The Paradox of the ‘Respectable Offender’: Responding to the Problem of White-Collar Crime in Victorian and Edwardian England John P. Locker

115

7

Controlling the ‘Hopeless’: Re-Visioning the History of Female Inebriate Institutions c. 1870–1920 Bronwyn Morrison

135

v

vi Contents

8

Punishment, Reformation, or Welfare: Responses to ‘The Problem’ of Juvenile Crime in Victorian and Edwardian Britain Heather Shore

Part III 9

Confinement, Discipline and Resistance

158

177

Prisoner Memoirs and Their Role in Prison History Sarah Anderson and John Pratt

179

10

Challenging Discipline and Control: A Comparative Analysis of Prison Riots at Chatham (1861) and Dartmoor (1932) Alyson Brown

199

11

Resistance, Identity and Historical Change in Residential Institutions for Juvenile Delinquents, 1950–70 Abigail Wills

215

Concluding Remarks: The ‘Punitive Turn’: The Shape of Punishment and Control in Contemporary Society Helen Johnston

235

Bibliography

242

Index

262

Acknowledgements A huge debt of thanks must go to all of the contributors to this collection, for their energy, enthusiasm, and commitment during this project. I would like to thank John Locker and Bronwyn Morrison for sharing in the initial idea for this collection and Barry Godfrey and Joe Sim for their enthusiasm for historical criminology which has influenced my own interest and development. I would like to thank Gerry Johnstone and Amanda Capern for their helpful comments on the original proposal, and the anonymous reviewers for comments on the proposal and manuscript. I would especially like to thank Yvonne Jewkes and Peter Young for their advice, encouragement and support. Also thanks to Tony Ward, Simon Green, Louise Sturgeon-Adams, and colleagues at the University of Hull. Finally, thanks to Christian for everything else. Helen Johnston University of Hull

vii

List of Abbreviations DPP HO NA PP TNAPSS

Director of Public Prosecutions Home Office Papers National Archives, Kew, London Parliamentary Papers Transactions of the National Association for the Promotion of Social Science

viii

Notes on the Contributors Sarah Anderson completed her PhD in Criminology at Victoria University of Wellington in 2006 and is a policy advisor at the Department of Corrections, New Zealand. Her research interests include the sociology and history of punishment and penal systems, and the relationship between penal governance and popular culture. Anette Ballinger is Lecturer in Criminology at Keele University, UK. Her research interests include gender and capital punishment in the twentieth century. She is the author of the award-winning book Dead Woman Walking: Executed Women in England & Wales 1900–1955 (Ashgate: 2000) (Hart Socio-Legal Prize 2001), and has written several book-chapters and journal articles on the subject of gender and punishment in modern history including: ‘The Guilt of the Innocent and the Innocence of the Guilty: The Cases of Marie Fahmy and Ruth Ellis’ in Myers, A. & Wight, S. (eds) (1996) No Angels, London: Pandora; ‘Researching and Redefining State Crime: Feminism and the Capital Punishment of Women’ in Tombs, S. & Whyte, D. (eds) (2003) Researching the Crimes of the Powerful: Scrutinising States and Corporations, New York: Peter Lang Publishing, and ‘The Worse of Two Evils? Double Executions and Gender in the 20th Century’ in Barton, A., Corteen, K., Scott, D. & Whyte, D. (eds) (2006) The Criminological Imagination: Readings in Critical Criminologies, Cullompton: Willan. She is currently working on a book entitled Capitalising on Punishment: State Power, Gender and Women Who Kill, to be published by Ashgate, October 2009. Alyson Brown is Reader in History at Edge Hill University, UK. She has conducted extensive research into the history of crime and punishment and especially on penal history. Her book, English Society and the Prison (2003) was well received and widely reviewed. She has also published articles and chapters on this subject, including; ‘A History of Experience: Exploring Prisoners’ Accounts of Incarceration’ in Emsley, C. (ed.) (2005) The Persistent Prison, and an article on the 1932 Dartmoor Prison riot in the British Journal of Criminology (2007). She has also published a co-authored book with David Barrett (2002) Knowledge of Evil: Child prostitution and child sexual abuse in twentieth century England, Cullompton: Willan. Recently her research was used to ix

x Notes on the Contributors

name Wil Alsop’s ‘Creative Prison’, an exhibition of which was held at Winson Green Prison, Birmingham. Jamie Bennett is a prison manager. He has previously held posts including Deputy Governor of HMP Whitemoor, a high security prison, and HMP Gartree, which houses life sentence prisoners. He has written on a range of criminal justice issues for publications including: The Prison Service Journal, Criminal Justice Matters, Journal of Crime, Conflict & the Media, The Howard Journal and Crime, Media, Culture. He has also contributed chapters to books including: Captured by the Media edited by Paul Mason (Willan, 2006) and Handbook on Prisons edited by Yvonne Jewkes (Willan, 2007). He is editor of the Prison Service Journal and has edited two books Understanding Prison Staff (with Ben Crewe & Azrini Wahidin) and Dictionary of Prisons & Punishment (with Yvonne Jewkes), both published by Willan in 2008. He is currently undertaking a PhD with Edinburgh University, researching the working lives of prison managers. Michael Fiddler is Lecturer in Criminology at the University of Greenwich, UK. He completed a doctoral thesis at Keele University in 2006 entitled ‘The penal palimpsest: an exploration of prison spatiality’. The fieldwork for the PhD was partially conducted in Sing Sing penitentiary, New York. His present research interests include the intersections of film, architecture and memory in the construction of understandings of the prison. Recent publications include: ‘Panopticon’ in Jewkes, Y. & Bennett, J. (eds) Dictionary of Prisons and Punishment (Willan, 2008); ‘Projecting the prison: the depiction of the uncanny in The Shawshank Redemption’, Crime Media Culture, 3 (2): 192–206; ‘Carandiru – “no home for the truth”’, Prison Service Journal, 161: 56–8. Helen Johnston is Lecturer in Criminology at the University of Hull, UK. She completed her doctoral thesis on the transformations of local imprisonment in the nineteenth century, at Keele University in 2004. Publications include: Jewkes, Y. and Johnston, H. (2006) (eds) Prison Readings: A critical introduction to prisons and imprisonment, Cullompton: Willan; Jewkes, Y. and Johnston, H. (2007) ‘The Evolution of Prison Architecture’ in Y. Jewkes (ed.) Handbook on Prisons, Cullompton: Willan; Johnston, H. (2006) ‘“Buried Alive”: Representations of the Separate System in Victorian England’ in P. Mason (ed.) Captured by the Media: Prison discourse in popular culture, Cullompton: Willan.

Notes on the Contributors xi

John P. Locker completed a doctoral thesis at Keele University in 2004 entitled, ‘This most pernicious species of crime’: embezzlement in its public and private dimensions, c.1850–1930. Between 2001 and 2005, he worked as a lecturer in Criminology at Keele University. He currently lives in New Zealand, and is a senior researcher with New Zealand Police. Present research interests include policing, and modern and historical aspects of white-collar and workplace crime, on which he has previously published: John P. Locker (2005) ‘Quiet thieves, quiet punishment’: private responses to the ‘respectable’ offender, c.1850–1930’, Crime, History & Societies, 9,1 (winner of the 2004 Herman Diederiks Prize); John P. Locker & Barry Godfrey (2006) ‘Ontological Boundaries and Temporal Watersheds in the Development of White-Collar Crime’, British Journal of Criminology, 46, 6. Bronwyn Morrison is a Senior Research Advisor for the Research, Evaluation and Modelling Unit at the Ministry of Justice, New Zealand. She completed a PhD in criminology at Keele University in 2005. In addition to her doctoral research on the social and state control of female inebriety, she has previously undertaken research on crime and disorder at tourist destinations, residential burglary, and comparative crime history. Her publications include: ‘Practical and philosophical dilemmas in cross-cultural research: the future of comparative crime history’, in Godfrey, B., Emsley, C. & Dunstall, G. (eds) (2002) Comparative Histories of Crime, and, more recently, The Conviction and Sentencing of Offenders in New Zealand: 1997 to 2006 (with Soboleva and Chong). At present she is involved in research exploring the operation of discretion in the criminal justice system. John Pratt is Professor of Criminology at Victoria University of Wellington, New Zealand. John Pratt’s books are: Punishment in a Perfect Society (Victoria University Press 1992), Governing the Dangerous (1997, Federation Press, Sydney), Punishment and Civilization (2002, Sage), translated into Spanish in 2006 as Castigo y Civilizacion (Editorial Gedisa, Barcelona); Penal Populism (2006: Routledge). He has edited or co-edited three books, Dangerous Offenders (2000, Routledge), Crime, Truth and Justice (2004: Willan), The New Punitiveness (2005: Willan). He has also published 70 articles in refereed journals and 35 book chapters. He is on the International Advisory Board of four journals including the British Journal of Criminology. He was Editor of the Australian and New Zealand Journal of Criminology 1997–2005.

xii Notes on the Contributors

Heather Shore is Senior Lecturer in Social and Cultural History at Leeds Metropolitan University, UK. Her main interests are in the history of crime and poverty between the eighteenth and early twentieth centuries. She has published widely on juvenile crime in the nineteenth century. Her well-received monograph, Artful Dodgers: Youth and Crime in Early Nineteenth Century London, was published in 1999. She has coedited two books, with Pamela Cox, Becoming Delinquent: European Youth, 1660–1960 (Ashgate, 2002), and with Tim Hitchcock, The Streets of London: From the Great Fire to the Great Stink (Rivers Oram Press, 2003). She is currently writing a social and cultural history of the underworld from the early eighteenth century to be published by Continuum. Tony Ward is Reader in Law at the University of Hull, UK. He is coauthor with Penny Green of State Crime: Governments, Violence and Corruption (London: Pluto Press, 2004) and with Gerry Johnstone of Law and Crime (London: Sage, forthcoming), a critical introduction to criminal law and evidence. Apart from state crime, his research interests (and his PhD) centre on the legal issues associated with expert and particularly psychiatric evidence from the nineteenth century to the present. He has published many articles and book chapters on those subjects. Abigail Wills completed her PhD, entitled ‘Juvenile delinquency, residential institutions and the permissive shift, England 1950–1970’, at Cambridge University in 2005. She is now a postdoctoral Career Development Fellow in History at Brasenose College, Oxford, UK. Her publications include: ‘Delinquency, masculinity and citizenship’ Past and Present, 187, (2005), and ‘Historical myth-making in juvenile justice policy’ History and Policy (2007). Her current research project explores the history of childhood nutrition and health visiting between 1930 and 1970, continuing her interest in questions of professional expertise, subjectivity, and social policy in twentieth century Britain.

Introduction: Histories of Punishment and Control Helen Johnston

Recent commentators, in a book series examining the interdisciplinary nature of criminology, and specifically looking at ‘history’ and ‘crime’, have discussed the development of historical approaches in criminology and interest in crime history and what might be interpreted as convergence between academic disciplines in this area in recent years (Godfrey et al., 2008). This field has been noted as a particularly buoyant area, and crime history and criminology have ‘intertwined’ recently, ‘come to terms with each other and are now creating their own history of interaction’ (Godfrey et al., 2008: 19). Whilst the contributors to this collection have not been questioned as to how they perceive themselves within this debate, it is hoped that this collection also goes some way towards elaborating and demonstrating this ‘convergence’. This collection brings together new and established scholars to offer research which takes forward, challenges or develops the existing theoretical perspectives, as well as exploring new territory in historical research, on punishment and social control. This collection is concerned with the delivery of punishment, the experiences of various forms of incarceration, and punishment and control within institutional settings and in wider society between the early nineteenth and the mid twentieth century. Research on punishment and social control has made a significant contribution to criminology and history, and more generally to the social sciences in last 20 to 30 years. They have contributed to our understanding of the emergence of the prison in the nineteenth century, changing penal philosophies and practices, and provided us with a historical understanding of contemporary penal issues. Writers in this field have given us a theoretical framework for understanding punishment, discipline, social control, penal policy and the law not only historically, but also in contemporary Western 1

2 Punishment and Control in Historical Perspective

society. This collection is intended to be read by those in the fields of criminology, sociology and history and to push forward our appreciation of the historical study of punishment and social control since the contributions of theorists in the 1970s and 1980s. This collection brings together a group of scholars who share a mutual interest in the dynamics of social control, power and punishment in the historical perspective. Predominantly these chapters are case studies of particular aspects of punishment, penal policy, criminal law, and discourses of offenders and subsequently, how they were perceived and treated by the criminal justice system and the public, in the nineteenth and twentieth centuries. The chapters within this collection offer a critical analysis of different types of institutions of punishment and social control; specifically, the local prison, convict prisons, inebriate reformatories, and the relationship between different offenders, the law and the criminal justice system, and experiences of confinement and forms of resistance in different custodial settings. Each chapter offers a detailed methodological case study approach, utilising newspapers, archival sources, parliamentary, official and personal record. The remainder of this chapter will provide an overview of the orthodox and revisionist accounts on prison, punishment and social control and framework for contextualising the following chapter contributions.

Theoretical perspectives on punishment and social control Research on the history of punishment, imprisonment and social control has been dominated in recent decades by the theoretical work put forward by a number of scholars who were writing in the 1970s and 1980s. These works set out to challenge Whig or orthodox traditional historical accounts which saw the birth of the prison in Western society and changes in punishment, such as the progressive movement away from public and capital punishment, as the march onwards towards a more civilised society. This Whig history, often championed the achievements of individual reformers in the development of such practices, and often through a lens of ‘humanitarianism’ and benevolence, saw these changes as the movement away from barbaric methods of punishment which triumphed in the orderly institutional focus of punishment in the nineteenth century. Examples of such accounts of the decline in public execution and the rise of the prison in England, include; Cooper (1974); Webbs (1963); Whiting (1975); Stockdale (1977); and Radzinowicz and Hood (1990).

Helen Johnston 3

Revisionist scholars, such as Foucault (1977); Ignatieff (1978); Rothman (1971); Melossi and Pavarini (1981); Cohen and Scull (1983) have constructed a competing analysis of changes in punishment, the birth of the prison and social control mechanisms. Broadly these authors share some similarities in their approaches; they argue that the emergence of the modern prison should be seen alongside the development of other institutions which shared similar disciplinary techniques (school, factory, asylum, hospital, for example). Collectively, these authors argue that the prison emerged in a particular relationship with society and developed to control and regulate populations. Separately, they offered more critical and challenging accounts which centred on explanations about power and power relations, economic and philanthropic motives of ‘reformers’, the interests of the governing class and the operation of state power. Foucault’s influential account, Discipline and Punish (1977) opens by contrasting the horrific public torture, mutilation, and execution of regicide Damiens in 1757, with the minutely regulated and ordered timetable for young offenders at Mettray reformatory in 1838. For Foucault, these two contrasting forms of punishment demonstrate two events that occurred during this period; first, the decline in the infliction of, and public displays of torturous punishment and second, the emergence of the prison. For Foucault, there is a shift in the target of punishment, from the body to the mind or the ‘soul’ of the offender and in the objective of punishment, away from avenging the crime, towards altering the offender. In order to understand or know the criminal, Foucault demonstrates how experts from fields such as psychiatry, criminology and social work are introduced into the criminal justice system to gain knowledge about the offender’s character and background and ultimately to try to reform the individual. So, for Foucault, this change is not necessarily a reduction in the severity of punishment, seen in the Whig accounts but a shift in the means and objective of punishment. Foucault argues that the decline in public punishment did not occur because of a new respect for the individual but rather ‘as a tendency towards a more finely tuned justice, towards a close mapping of the social body’ (Foucault, 1977: 78). The legal reformers wanted ‘not to punish less, but to punish better, to punish with an attenuated severity perhaps, but in order to punish with more universality and necessity; to insert the power to punish deeply into the social body’ (Foucault, 1977: 82). Foucault explains the rise of the prison as the predominant form of punishment in terms of its use of disciplinary techniques. The

4 Punishment and Control in Historical Perspective

disciplinary techniques used in the prison were also used by other institutions such as the school, the army, the hospital, the asylum, whose aim was the training of individuals, the formation of ‘docile and obedient bodies’. This range of institutions, which surveyed and trained individuals, Foucault located on a ‘carceral continuum’, as the boundaries between the institutions often blurred. The design, which for Foucault provided the most efficient system of regulation and surveillance, was Jeremy Bentham’s Panopticon. In the Panopticon, guards in the central control tower could continuously survey the prison, narrow viewpoints made it impossible for prisoners to see the guard and to know when they were actually being watched (also see Concluding Remarks). Building on the earlier Marxist interpretation of Rusche and Kirchheimer (1939), that the rise of the prison was linked to the rise of capitalist mode of production, Melossi and Pavarini’s, The Prison and the Factory (1981), trace the early origins of the houses of correction in the sixteenth century Europe and the use of compulsory labour as a means of teaching inmates ‘the discipline of production’ (1981: 21). These houses of correction deterred the free labourer through severe conditions, which forced the labourer to accept the conditions of work and life outside, as preferable to that of the prison or the workhouse. Building on these historical origins of the use of labour to instil discipline and obedience, Melossi and Pavarini argue that the ‘real dimensions of the penitentiary invention’ are seen in the ‘prison as a machine’ from the early nineteenth century (1981: 144). In periods of high unemployment the conditions in prisons are made more severe and they ‘revert to being places for the destruction of the workforce’ (ibid.). However, when the economy is experiencing low unemployment and rising wages, the prison puts prisoners to useful labour in order to recycle them into the free market, thus the prison ‘is like a factory, producing proletarians’ (1981: 145). So, for Melossi and Pavarini, the prison is inextricably linked to the capitalist mode of production and similarly, to Foucault, to other social institutions such as the school, workhouse, factory, in disciplining the workforce for the benefit of capitalist production. David Rothman and Michael Ignatieff’s accounts are both concerned with the motives and ideology of the reformers, philanthropy and the consequences of ‘reform’. Rothman argues in, The Discovery of the Asylum, that we need to be cautious when examining what appears to be progressive change and instead be ‘wary about taking reform programs at face value; arrangements designed for the best of motives may

Helen Johnston 5

have disastrous results. But the difficult problem is to review these events without falling into a deep cynicism’ (1971: 295). Platt’s earlier account of the juvenile justice system in the US, The Child Savers (1969), takes a similar approach. Ignatieff’s A Just Measure of Pain (1978) also sees a more complicated relationship between the reformers and class interests in the ideological origins of the penitentiary. Reformers had genuine religious and philanthropic views, and this succeeded because it was not just a response to crime, but to social crises at the time and a way to re-establish order (1978: 210). Similarly, to other revisionist accounts, it was no accident that prisons, asylums, workhouses, and schools all looked alike or ‘that their charges marched to the same disciplinary cadence’ (1978: 215). David Garland’s, Punishment and Welfare (1985) argues instead that the period in which the modern ‘penal-welfare’ complex develops is the end of the nineteenth century, rather than the late eighteenth and early nineteenth century identified by revisionist accounts. He argues that during the period between 1895 and 1914, a more rehabilitative or welfare approach emerges, which is strongly influenced by positivist thought. It is during this period, a number of different offenders are removed from the prison (juveniles, mentally ill, recidivists, inebriates) and special policies are created to deal with these offenders who are seen as needing treatment to ‘cure’ their behaviour or need to be dealt with differently, for example, the establishment of a separate juvenile justice system and alternatives to custody such as probation and aftercare services. Martin Wiener’s Reconstructing the Criminal (1990) takes a more cultural approach to understanding the development of criminal justice and penal policy in the Victorian and Edwardian period. The influential work of Norbert Elias, The Civilizing Process (1978), has also shaped research in this field, in particularly, Spierenburg’s, The Spectacle of Suffering (1984) and The Prison Experience (1991) argue that changes in punishment and imprisonment evolved over a much longer period of time than identified by revisionist accounts (also see Spierenburg, 2005). More recently Pratt’s Punishment and Civilisation (2002), examines changing penal sensibilities and practices over the nineteenth and twentieth centuries and the ways in which punishment became ‘recognised as civilised’, (despite competing claims), and the consequences of this in light of recent penal developments in the Western world over the last two decades (also see Concluding Remarks). In terms of capital punishment, influential accounts by Hay (1975), Linebaugh (1975, 1993), and Gatrell (1994) have been concerned with

6 Punishment and Control in Historical Perspective

operation of the criminal justice system and the ideology of law which appeared universal, but was deeply class orientated. When considering the end of public execution, recent authors have argued this change was influenced by the need to present a more pleasing image of justice (McGowen, 1983; also see McGowen, 1986, 1994, 2000) and a growing distaste for the carnival of public execution and sympathy for the condemned, reflecting changing sensibilities towards such punishments (Pratt, 2002). The classic study, Women’s Imprisonment, by Pat Carlen (1983) had a profound effect on the research of women’s imprisonment and punishment in criminology, yet, few historians have attempted to ‘redress the gender imbalance which remained after ‘the new social histories’ of the 1970s revised the story of the nineteenth and early twentieth century prison systems’ (Howe, 1994: 133). Over recent decades there have been some significant contributions which have provided a revisionist history of imprisonment which includes women (Freedman, 1981; Rafter, 1983, 1985; O’Brien, 1982; Dobash et al., 1986; Zedner, 1991) and more recently research on England, examining the capital punishment of women in the twentieth century by Ballinger (2000) and the semi-penal institutionalisation of women by Barton (2005) (also see Chapter 2 and Chapter 7).

Introducing the collection In addressing these themes the collection is divided into three parts, advancing theoretical perspectives; penal policy, prison practice and discourses on offenders; and confinement, discipline and resistance. However, more broadly linkages can be between chapters in a number of different ways. Part I of the book explores theoretical perspectives on punishment and control, seeking to advance our theoretical understanding through case studies of particular aspects of imprisonment and modernity, social control, legal and medical discourses and gender, and operation of the criminal justice and penal system in relation to the treatment of different groups of offenders. Chapter 1 by Michael Fiddler focuses on the development and evolution of Sing Sing penitentiary, New York. Fiddler argues for a multilayered approach to the history of Sing Sing, using three overlapping periods of centrality, marginality and adjunct to illuminate this understanding. Fiddler maintains that in the nineteenth century the prison was ‘central’ to the developing industrial city and the use of labour within the prison was a key feature, not necessarily in terms of production, but in

Helen Johnston 7

terms of the practice of labour. In the early twentieth century, Sing Sing expanded, developing into a ‘Big House’ prison. The architecture of Sing Sing became monumental (iconic in cinematic portrayals of the period) yet the prison was marginal, as the offenders were stored away from society, segregated and no longer needed for industry. In concluding, Fiddler discusses the way in which the prison has become adjunct to the contemporary urban environment and how these prisons operate merely to contain a population of ‘redundant republic machines’. Chapter 2 by Anette Ballinger argues for a reconceptualising of gender and social control in explaining the interactions between individuals and the state criminal justice system. Early conceptions of social control were genderised by feminist approaches in the 1970s to embed notions of the social construction of femininity and the specific means by which women were social controlled – reproduction, family, home, work. Within this context, Ballinger maintains that social control and gender conformity have paid little attention to the ways in which both men and women are constructed. Ballinger argues that both men who fail to conform to the social construction of ‘respectable masculinities’ as well as women controlled through ‘appropriate femininity’ can be perceived as problematic. Through a detailed case study of Ada Allen, accused of murdering her husband in 1945, Ballinger demonstrates how the victim, Donald was constructed as a failure with regard to marriage and work – key components of hegemonic masculinity. Ballinger argues that through reconceptualising social control to address dimensions of both masculinity and female agency allows for a fuller understanding of the ways in which gender relations operate in the social control of women and men before the law. The importance of the relationship between medical power, punishment and social control has been highlighted by earlier contributions, in relation to prison practices (Sim, 1990), and the ways in which this operates more broadly as a social control mechanism (a number of essays in Cohen and Scull, 1983). Michel Foucault’s work on medicine and punishment has been highly influential in this field and it is one area of his work that is taken up by Tony Ward in Chapter 3. Ward illuminates the relationship between medical discourse and punishment in an examination of the English law and psychiatry in the nineteenth and early twentieth centuries. Ward examines Foucault’s concept of ‘rule of common truth’, psychiatric expert evidence and boundaries between responsible and non-responsible subjects and how this operated rather differently in the English adversarial legal system compared to the French inquisitorial system.

8 Punishment and Control in Historical Perspective

One aspect discussed by Ward is, Foucault’s view that psychiatric evidence functioned through the ‘doubling’ of offender and offence. Legal and medical discourses provide a ‘switchpoint’ in producing similar statements but operating from different discourses; criminal acts are manifestations of pathological traits and the offender is doubled by the delinquent, the bearer of the pathological trait of criminality. This concept of doubling is also illuminated in the treatment of female inebriates in the late nineteenth century (Chapter 7), where habitual drunkenness was increasingly defined as a medical condition or ‘disease’ especially as regards women. More broadly, the doubling of the legal subject (responsible for a particular act) by the offender or delinquent can also be seen in the treatment of ‘good’ or ‘bad’ women and men before the law in Chapter 2. However, in Chapter 6, Locker argues that respectable offenders avoided such doubling by the denial that respectability and criminality could exist together. Part II of the collection addresses the changes and development in prison policies and penal practices in the nineteenth and early twentieth centuries, and the ways in which particular groups of offenders were discussed in official and public discourses and the consequences of this for treatment of such offenders. Chapter 4 by Helen Johnston examines the role of prison officers in local prisons between 1835 and 1877. She maintains that the role of prison officers in the years before the centralisation of the English prison system exemplifies the paradoxes, not only between policy and practice in the implementation of legislation in local prisons, but also conflicting and competing aims of imprisonment at this time. Despite the interest and commentary on prison regimes and practices during this period, those officers who implemented such practices on a day to day basis, have received little attention in the theoretical approaches of the revisionists and are often overlooked despite the importance of their involvement in the delivery of punishment at this time. Chapter 5 by Jamie Bennett discusses the direction and development of prison policy and penal practice at the beginning of the twentieth century when Winston Churchill was appointed Home Secretary. Despite the rather short period in office, Churchill has often been regarded as a ‘reforming’ Home Secretary and this has been linked to Churchill’s own experience of imprisonment during the Boer War. Through an examination of prison conditions, prison staff and penal policy, Bennett maintains that Churchill’s reforms were often based on amelioration rather than transformation, and despite his ability to bring about some changes, these were not new, but reflecting the

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liberal welfarist agenda. Churchill’s period of office reflected personal tensions, and tensions of the time, during which approaches to crime and the role and use of imprisonment were contested, between discipline and welfare, liberalism and conservatism. This chapter, along with Chapter 2, Chapter 7, Chapter 10 and Chapter 11, also contribute more broadly to the rather neglected period of the first half of the twentieth century, when considering existing research on punishment, penal policy and criminal justice (Emsley, 2005a). The following three chapters in Part II examine different groups of offenders and the ways in which penal policy and discourses on offending behaviour shaped their treatment by the criminal justice system. The emergence of the ‘respectable offender’ in the nineteenth century is detailed by John Locker in Chapter 6. Locker explores discourses on white collar crime, the social responses to the respectable offenders, and the impact of this on the punishment of such offenders. Moving beyond a debate about whether this type of offender was treated more leniently or more harshly by the criminal justice system, Locker maintains that respectable offenders bought into question traditional assumptions about crime and offenders. Discourses which operated in court cases and in public opinion resolved the problematic nature of the respectable criminal by rebuilding the symbolic divide between criminal and non-criminal, deviant and normal, and respectable and nonrespectable. As such, discourses operated to deconstruct and reconstruct these offenders, through strategies of estrangement and exoneration, as either the ‘unrespectable offender’, or the ‘respectable non-offender’ but rarely as respectable and criminal. The latter part of the nineteenth century saw the removal of particular groups of offenders from the prison, part of a new penal welfare complex (Garland, 1985), and saw the development of other types of institutions, perceived as maintaining less punitive regimes and more rehabilitative practices. The inebriate was one such offender, and the inebriate reformatory was one such institution. Chapter 7 provides a detailed account of inebriate institutions for women by Bronwyn Morrison. She argues that the institutions set up at this time were ones in which women were disproportionately overrepresented, and which extended penal arrangements, rather than departed from them. Morrison maintains that the gendered nature of these institutions was no accident, but based on contemporary discourses of the habitual drunkard as female, and concerns over the lack of control over these ‘diseased’ women. Instead of rehabilitative, treatment or reform, the regimes within these institutions operated to control, segregate and

10 Punishment and Control in Historical Perspective

contain women who were often perceived as unmanageable and beyond reform. Chapter 8 by Heather Shore discusses Victorian and Edwardian responses to the problem of juvenile crime and the evolution of a range of institutions and provision, both state and voluntary, over this period. In the first period, she explores experiments with institutional provision, the first state-run juvenile institution Parkhurst, emigration and transportation, and the Reformatory and Industrial Schools Acts. In the second period, she examines the web of institutions which proliferated for large numbers of working class children, including; schools, reformatories, industrial schools, and training ships. A number of scandals, with regard to excessive punishment and poor treatment, drew attention to the use of training ships in late Victorian and early Edwardian periods. This fed into broader concerns with the punishment and welfare of children in the reformatory and industrial schools system, and culminated in the Children and Young Person’s Act 1933. Part III of the collection explores the experiences of confinement, disciplinary regimes, and various forms of resistance in different institutional settings. The revisionist accounts of the prison in the nineteenth century often leave silent the voices of the confined and the staff (see Chapter 4). The final part of the collection examines the experience and effects of incarceration or institutionalisation on those committed to a range of institutions. In Chapter 9, Sarah Anderson and John Pratt discuss the ways in which prisoner memoirs challenged the legitimacy of official discourses on prison regimes in the late nineteenth century. In a period which saw the centralisation of the local prisons and increased uniformity and severity in prison regimes, they are concerned with the lived experience of punishment and how prisoners’ accounts were instrumental in reforms that occurred at the end of the century. In discussing prisoner memoirs, they focus on features of prison life, such as physical deterioration, mental illness, medical care and relations with doctors, which are prevalent in prisoner memoirs and the responses of the prison authorities to widespread criticism during this period. In Chapter 10, Alyson Brown details the riots at Chatham Convict Prison in 1861 and Dartmoor in 1932, providing a historical approach to our understanding of prison riots. Both riots occurred during significant periods in penal history in England, when there were changing ideas about penal philosophy and changes in the organisation of the prison system. The Chatham riot took place during the end of transportation to Australia and the emergence of the convict system,

Helen Johnston 11

to house those sentenced to periods of penal servitude. The Dartmoor riot, on the other hand, occurred during a period of more progressive developments in the prison system. Official and public discourses focused on prison conditions and recidivist or habitual offenders, undermining any legitimate or justifiable claims by prisoners, by characterising them as desperate, or having nothing to lose. Yet, in the aftermath of the Dartmoor riot, the administration were able to construct the previous failures of severity and deterrent regimes in the late nineteenth century (see Chapter 9), as a means of protecting their own administration and preserving a more progressive approach. The final chapter by Abigail Wills examines the experiences of control within institutions and strategies of resistance to authority in residential reform schools, specifically, Approved Schools, Probation Homes and Probations Hostels for young people and children, during the 1950 to 1970 period. Wills presents a more nuanced picture of agency and identity within these institutional settings, and challenges the notion that resistance is ultimately futile, and agency limited in significance. This research demonstrates that various forms of resistance – individual, collective, violent – were a part of daily institutional life and often centred on the inequities of institutionalisation itself, as well as institutional life, relationships with social contacts outside, and personal autonomy, dignity and privacy. This collection of case studies engages with, criticises and develops more nuanced approaches to the theoretical framework of existing research laid out in this introduction. Together they provide original research and important insights into gaps in our historical knowledge and our understanding of punishment and control in the nineteenth and twentieth centuries.

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Part I Theoretical Perspectives

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1 Modernity, The New Republic and Sing Sing: The Creation of a Disciplined Workforce and Citizenry Michael Fiddler

…not only is modern society a cage, but all the people in it are shaped by its bars (Berman, 1982: 27).

Central, marginal and adjunct: three periods of the modern prison Where do we locate the beginning of modern imprisonment? For Durkheim (1973) and Foucault (1977) modernity and the origin of the prison were synonymous. The early prison arose out of ‘the beginnings of the industrialised urban society’ (Garland, 1985: 4). Rusche and Kirchheimer (1939), and latterly Melossi and Pavarini (1981), imposed a Marxist reading locating the prison in relation to developing modes of production. Specifically, they made explicit the parallels between the factory and the prison. Alternatively, Cohen (1996) and Mathiesen (1974), envisaged new patterns of imprisonment and penality, typified by the ‘“hidden discipline” of community corrections’ (Garland, 1985: 4). Whereas, for Ignatieff (1978: 62), the prison would not simply stop ‘the bacillus of vice’, but also the radicalism of the nascent nineteenth century workers’ movements. Subsequent writers looked to the post Second World War ‘epoch of rehabilitation’ (Garland, 1985: 4). In Garland’s terms, this saw the move from paternalism and the spiritual to ‘a more technical form of social engineering’ (1985: 4). The argument that I elaborate here incorporates these perspectives into a wider whole. I propose that imprisonment, from modernity to late-modernity, can be divided into three over-lapping periods: central, marginal and adjunct. This first period of ‘centrality’ incorporates Foucauldian notions of discipline, in addition to the work of Rusche and Kirchheimer (1939) and Melossi and Pavarini (1981). The second 15

16 Punishment and Control in Historical Perspective

sees the prison taking on a marginal or ‘monumental’ aspect that foreshadows current ‘warehousing’ discourse. As we shall see, each of these stages had important, but differing implications for prison labour and inmate citizenship more broadly. The scope of this piece looks at Sing Sing across the first two stages before briefly looking to its third contemporary role as an adjunct to the urban. The ‘central’ period figuratively, geographically and visually located the prison as central to the developing modern, industrial city. A useful analogy to make is that during this period, ranging from the early to late nineteenth century, the prison was as central to the construction of the modern Western state as the gulag was to Stalinist, Soviet Russia (Piacentini, 2004; Pallot, 2005). As Bosworth and Sparks state, the prison played a special role in the ‘great political experiments of modernity – liberal democracy, colonialism, fascism and state socialism’ (2000: 260). This first period of centrality was …a landscape of steam engines, automatic factories, railroads, vast new industrial zones; of teeming cities that have grown overnight, often with dreadful human consequences… (Berman, 1982: 18–19). It was a time of immense socio-economic and political change. The prison’s function was to produce a citizen capable of the labour necessitated by modern, capitalist systems. The prison was a utopic site, a site of ordering that would act as a disciplining beacon for the rest of society. This was to be a ‘strange kind of model community’ (Evans, 1982: 198) whose effects would radiate throughout the social body. I contend, following Rusche and Kirchheimer (1939) and Melossi and Pavarini (1981), that the prison was a vehicle by which a modern workforce-cum-citizenry could be moulded and, by extension, assist in the creation of the modern state. The periods following this initial one saw the prison take a trajectory away from societal centre towards, initially at least, the margins and latterly a hybridised space running in parallel to the contemporary urban environment. What I label the ‘marginal’ period, spanning the early to mid-twentieth century, saw the development of the Big House style of architecture in the United States. Conversely to the earlier central period, the penitentiary and its population were marginalised from society, both geographically and socially. It would no longer hold its ‘central’ position. The adjunct period, ranging from the late twentieth century to the present, has emerged out of this marginality. It sees the carceral space of the prison leech out into the urban. The prison and the urban have come to act as

Michael Fiddler 17

adjuncts to each other. They are not simply parallel sites, but of one another. Yet what is the importance of Sing Sing in examining these processes? Sing Sing’s popularity as a film location in particular has seen it seep into popular consciousness. Its name has become synonymous with the prison experience. We can use it, as Soja (1996: 18) (acknowledging Proust) would put it, as a ‘geographical madeleine’. To put this differently, lacunae of meaning build up in space over time. As they do so, some elements are lost whilst others remain visible. An analysis of the space of a prison in the early twenty-first century will reveal glimpses of the spaces of the generations of penal regime, architecture and philosophy that preceded it. Likewise, an examination of those earlier prisons can illuminate our understanding of contemporary concerns. By peeling back the layers of this spatial palimpsest we can see the ongoing development of key phenomena (Fiddler, 2006). Namely, the progression and changing demands of modernity can be mapped onto the space of the prison. Indeed, the periodisation I outline here maps onto Sing Sing as it does the history of imprisonment more broadly. We can use Sing Sing as a lens to view the production of a modern (carceral) space. In so doing we can position the penitentiary in its wider socio-economic and political context. This illuminates these broader processes to a greater degree than a simplistic chronological recounting of a given institution’s history. More pertinently, it causes us to rethink the prison’s relation to modernity itself.

Examining the history of Sing Sing My analysis of the history of Sing Sing takes its lead from de Certeau (1988). Specifically, one cannot recount a narrative of the past ‘as it really was’. In looking back we apply filters of present day thinking onto what we perceive to have occurred. Yet, de Certeau did not think of history as a simple ‘construction’ of the present. He described a tension between the ‘real’ and ‘known’. In other words, that which the historic wishes to ‘bring back to life’ and the ‘modes of comprehension’, the models, to be applied to it (de Certeau, 1988: 35). Weymans cogently describes de Certeau’s (1988) metaphor of the ‘staging of the past through historiography’ as being like ‘the work of a museum guide’: On the one hand, the guide organizes the paintings on the wall; he or she relates a story about them, following a set route that connects all the pictures together. On the other hand, the guide cannot speak

18 Punishment and Control in Historical Perspective

definitively… [T]he museum guide must also refer to what he or she cannot fully describe in words: the picture itself. The museum guide and the pictures are dependent on each other: the picture receives its meaning through the tale that the museum guide tells about it, while the museum guide cannot tell anything about the picture without showing it (Weymans, 2004: 176). This then links models and events. So, the ‘text is always held together by various concepts and organising structures that enable historical understandings’ (Weymans, 2004: 175). I pick out what I consider to be ‘key’ events in Sing Sing’s history before offering my analysis of them and overlaying an ‘organising structure’. As such, my selections are like the paintings of de Certeau’s metaphor, and my concepts and organising structures are the ‘museum guide’ to these ‘paintings’. I will frame this chapter by examining the role of three wardens (Elam Lynds, Thomas Mott-Osborne and Lewis Lawes) and their varied influences upon the creation of a ‘modern’ Sing Sing. Their periods of wardenship map onto key passages of centrality and marginality. This periodisation brings with it epistemological issues (inter alia, Kelly, 1977; Bentley, 1996). That said, I do not claim that these are discrete periods apprehended as such by actors at given points. Instead, they emerged, organically, from the processes of modernity. Themes relevant to one stage in this model can appear in another stage, albeit in a subtly different form. There are echoes, repetitions and circularities. It is Sing Sing itself that we turn to now and, as Beaumont and De Tocqueville put it, ‘the way in which it was executed is of a kind that deserves to be reported’ (1833/1979: 43).

Central: the wardenship of Elam Lynds (1825–1830) Elam Lynds, the former warden of Auburn penitentiary, was given the responsibility of finding a site and building a ‘new, more modern prison’ in 1825 (Gado, 2004: 1). He ‘explored sites at Manhattanville on the Spuyten Duyvil’, Staten Island and the Bronx (Panetta, 1986: 39). However, it was a location at Mount Pleasant on the banks of the Hudson in Westchester County that was selected. There was a small village near the site called ‘Sing Sing’. Sing Sing was derived from ‘Sint Sincks’, the name of a local native American tribe. Sint Sincks itself was taken from an earlier phrase, ‘Ossine Ossine’ which meant ‘stone upon stone’ (Lawes, 1932). This is oddly prescient given that the penitentiary would be built by inmates from the stone from the

Michael Fiddler 19

quarry next to the prison site. Once the plan was approved, the state legislature provided $20,100 for the purchase of the land. The regime and building itself would be based on the Auburn model, the latter being ‘the latest word in penal institutions’ (Lawes, 1932: 78). The aptly named John Carpenter was appointed by Lynds as Sing Sing’s architect. The cells were positioned back-to-back in a freestanding, central core. This distance from the exterior walls afforded a greater degree of security and represented the then ‘unique contribution’ of the Auburn-Sing Sing design (Johnston, 2000: 78). Sing Sing further drew upon the regime established by Lynds and others at Auburn’s northern wing in the early 1820s. This saw the prisoner work silently in association during the day and then return to their cell at night. This was known variously as the congregate, silent or Auburn system (for use in England, see Chapter 4). As Lynds would state, ‘[t]he point is, to maintain uninterrupted silence and uninterrupted labour’ (Beaumont and De Tocqueville, 1833/1979: 162). Sing Sing was some thirty miles north of New York. Its location next to the Hudson ensured that there was a route for supplies and products could be sent either down river to New York or up river to Albany. The river formed one side of the compound and was useful as a security barrier. The other elemental force was seemingly Lynds himself. Beaumont and De Tocqueville describe Lynds as ‘having no other means to keep [the prisoners] in obedience, than the firmness of his character and the energy of his will’ (1833/1979: 43). The English Captain Basil Hall visited Sing Sing during its construction and described his ‘astonishment’ at seeing ‘only two sentinels pacing along the height, from whence I looked down upon two hundred convicts at work’ (1832, cited by Gura, 2001: lxiv). There was a ‘perfect feeling of security, though we were walking around unarmed amongst cutthroats and villains of all sorts’ (ibid.: xi). There was also a more brutally practical aspect to his wardenship of Sing Sing. When asked if it were possible to manage without resort to corporal punishment, Lynds replied ‘I am completely convinced of the opposite’ (cited by Conover, 2001: 177). Levi Burr published the splendidly titled A voice from Sing Sing, giving a general description of the state prison, a short and comprehensive geological history of the Quality of the Stone of the Quarries; and a synopsis of the Horrid Treatment of the Convicts in That Prison in 1833 (Conover, 2001: 177). In the book he describes the ‘cat-ocracy’, whereby a cat-o’-nine-tails was used for a range of offences. On the ground floor of the completed cellblock was an area called the ‘Flogging Post’ (ibid.). Here ‘[t]wo irons had been fastened to the wall’ and the cat-o’-nine-tails hung nearby (ibid.). An 1841 legislative

20 Punishment and Control in Historical Perspective

report offered the following gruesome detail: ‘[t]he whipping post was never dry’ (ibid.: 178). These then were the means by which Lynds was able to control the early prison population and construction of Sing Sing. Once the prisonercum-builders had completed the first two tiers the convict population of New York’s Newgate transferred into the prison. This influx of new inmates meant that each cell was swiftly inhabited. By 1830 the population was some 800. In those first few years the prison simply consisted of the enormous cellblock. In contrast to Auburn there was ‘no administrative center; no main entrance’ (Panetta, 1986: 39). All there was, in Lawes’s (1932: 82) telling phrase, was a ‘mausoleum with niches arranged in galleries’. Plates that remain also depict the warden’s house, styled after a large colonial house, stood at one end of the block. Industrial shops were latterly built close to the river. Cheli (2003: 17) notes that, before the exterior wall was eventually erected, the prison ‘looked like an industrial village on the banks of the Hudson river’ (emphasis added). In many ways the Sing Sing of the first half of the nineteenth century could be deemed a success. The system originated in Auburn was further refined in Sing Sing. It then became the template upon which other state penitentiary systems were based. The ill-effects of association between criminals; which ‘renders their moral reformation impossible, and becomes even for them the inevitable cause of an alarming corruption’, had been countered through rational, yet costeffective means (Beaumont and De Tocqueville, 1833/1979: 55). A report of the Prison Commissioners concerning Sing Sing stated that ‘[n]o better penitentiary prison was ever built at any time in this or any other country’ (cited by Lawes, 1932: 82). This then was a state-of-theart prison and a symbol for the utopic project of the New Republic.

Central: discipline and labour It is the confluence of modernity, industrialisation and the prison that I turn to now. Simply put, industrialisation required workers. As Faucher (1838, cited by Melossi and Pavarini, 1981: 99) stated: …labour is the fate of the modern peoples…Labour must become the religion of the prisons. A society-machine requires purely mechanical means of reform. The prison became the central site where the discipline of repeated micro-actions on the body of the prisoner produced a modern labourer.

Michael Fiddler 21

The repetitious gestures and actions of the prisoner inculcated the physical skills needed to work in the industrialised workplaces of the eighteenth and nineteenth centuries. Inculcating industrious patterns of behaviour and ‘the habits of society’ became the ‘principal object[s] of punishment’ (Beaumont and De Tocqueville, 1833/1979: 58). Foucault’s description of the importance of these measured (in both senses) movements focuses attention on what I argue is the true essence of the centrality of this period. It is the importance of the small gesture (or rather, as Foucault (1977: 152) corrects, ‘the best relation between a gesture and the overall position of the body, which is its condition of efficiency and speed’) which arcs out and up, across the social body. As Wright suggests, [i]deology is not merely produced in written texts but inscribed in and on the flesh, in the ritual moving of the body in social settings… (1997: 60–1). In this way, prisoners themselves took on an ‘abstract exchange value’. As Melossi and Pavarini (1981: 185) elaborate, the prisoner is denied a ‘quantum of liberty’ (original emphasis). This represents ‘the most simple and absolute form of “exchange value”’ in a capitalist society (ibid.). The denial of liberty is achieved in its most powerful and abstract form in the prison. The labourer/prisoner is not simply alienated ‘from/by the means of production’, but is also expropriated ‘from his own body’ (ibid.: 187). Melossi and Pavarini’s (1981) reading follows on from Rusche and Kirchheimer’s (1939) influential, if not now somewhat simplistic, work. Whilst it has been argued that to place heavy emphasis upon the training of workers to populate factories is misguided (inter alia, Garland, 1990; Rothman, 1990), this writer would suggest that re-evaluating their work with reference to that of Pashukanis (1980) is valuable. Pashukanis’s (1980) idea of crime and its punishment was premised on them being part of the capitalist system of contracts and exchange. Crime was a ‘contract concluded against one’s will’ (Pashukanis, 1980: 112). The punishment, it then followed, is a contract which is an act of exchange in relation to the harm inflicted upon the victim. The systems of punishment then became a means, if not the means, by which the class system is maintained. For Pashukanis (1980: 116), ‘[e]very historical system of punitive policy bears the imprint of the class interest of that class which realized it.’ The relation of the prisoner to the space of the prison, be it mediated by labour or architecture, is directly linked to

22 Punishment and Control in Historical Perspective

the prison’s location amidst changing systems of capital. During this initial period of the prison ‘experiment’, the disciplining aspect of the prison grew out of the requirement for a workforce. Pashukanis (1980: 115) points to the changing character of justice as society moved from a natural economy to the ‘development of commerce and the organisation of a class state’ and with it ‘the concomitant increase in the exploitation of the peasantry.’ Through these systems, the subordinated class was kept ‘in obedience’ (ibid.). The exchange value that is manifest in the prisoner is their capacity to work. Applying a quantum of time to be ‘taken’ in exchange for a crime is related to the amount of labour to be achieved during that period of time. The prisoner is thought of in terms of ‘the abstract man’ and of ‘abstract human labour time’ (ibid.: 120). For Pashukanis (1980) it was not coincidental that such a system should develop and be normalised during the nineteenth century, a period which saw the consolidation of bourgeois society. Thinking of the prisoners in terms of abstract human labour time is a reductive device. Simplifying and abstracting reduced the individual to their most base level. One need not consider them as anything other than their abstract capacities. There are dissenting voices to the ideas espoused here. Rothman (1990) dismisses the link between industrialisation and the role of the prison. Preferring to draw upon the apparent collapse in social ties rather than an explanation borne of the changing demands of modes of production, Rothman (1990: xxxviii), citing Sutton’s (1988) stance, airily dismisses the work of Rusche and Kirchheimer (1939) and Melossi and Pavarini (1981): The reformatory is not efficiently explained either as a functional outcome of modernization or as a simple instrument of class control and industrial discipline. Further, he uses Ignatieff’s (1978) claim that the factory and prison came to resemble one another not out of a simplistic reading of class control, but …because both public order authorities and employers shared the same universe of assumptions about the regulation of the body and the ordering of time (cited by Rothman, 1990: xxxvii). The fear that prompted the birth of the penitentiary was itself not a reaction to ‘the aggressive demands of a submerged labouring class’, but

Michael Fiddler 23

a sense of ‘moral dissoluteness’ at the collapse of the imagined communities that had characterised America a century before (Rothman, 1990: xliii). Thus, it was the institutions of family and church that informed the Jacksonian-era prison, not the factory. Cheli’s (2003) comments as to the superficial likeness of Sing Sing to an industrial village aside, my intention here is not to provide evidence for a ‘simple translation’ of the prison to the factory (ibid.: xxxvii). Such a uni-dimensional response would not take us much further than Rusche and Kirchheimer’s work. However, it is clear that Rothman and Sutton selectively ignore the impact of the broader processes of industrialisation and modernity itself. Rothman (1990) becomes entangled in the argument that questions whether the modern prison was profitable (inter alia, Durham, 1989). The material benefits to the prison system of inmate labour were of secondary importance. At one point Rothman (1990: 105) does stumble across the fundamental point that ‘[t]he idea of labour, even more than the calculations of profit and loss, made it central to the penitentiary’. I propose that, with reference to Pashukanis, the importance lay in the practice and not necessarily the product of labour. Indeed, it is the idea of labour that is the key. As Lynds stated, the importance lay in the message to be taken from ‘uninterrupted labour’ (Beaumont and De Tocqueville, 1833/1979: 162). Sutton’s criticisms entirely ignore the pivotal role of the modern prison in the construction of industrialised America. The construction of the prison and the discipline of the prisoners held a position of ideological centrality. It is a rather simplistic rebuttal to Rothman, but the following quote from Beaumont and De Tocqueville neatly encapsulates my argument: Perhaps, leaving the prison [the inmate] is not an honest man, but he has contracted honest habits. He was an idler; now he knows how to work (1833/1979: 90). There was indeed a syncretism between factory and prison (and the other ‘total’ institutions such as the workhouse, hospital or school) as Ignatieff (1978) rightly suggests. I am not suggesting that the prison and factory’s relationship was unique. They did, indeed, exist within an atmosphere, a ‘universe of assumptions’. The same new sciences of the body impacted on institutions throughout the social body. This was a function of the broader processes of modernity. To deny the importance of these as Sutton and Rothman do (and which, arguably, produced the very conditions that they highlight as producing the

24 Punishment and Control in Historical Perspective

prison) is grossly remiss. The docile body was constructed in numerous ways, but most evidently within the prison walls.

Central: discipline and citizenship …the emergence of the penitentiary in the United States was a project constitutive of liberal democracy. That is, the penitentiary system formed the epistemological project of liberal democracy, creating conditions of knowledge of self and other that were to shape the political subject required for liberal and democratic values to be realised in practice…we could in a sense say that the American penitentiary was erected by the Founding Fathers of the Nation as an imposing and monumental Gateway to the Republic (Dumm, 1987: 6). The production of these docile, compliant bodies was achieved within the individualised space of the cell. This was a function of the broader development of a ‘science of the individual’ (Foucault, n.d., cited by Mills, 2003: 105). The individual became ‘the object of possible knowledge’ (Foucault, 1988, cited by Mills, 2003: 104). The emergence of ‘Man’ as an area of study marked an ‘episteme shift, a dramatic change in the way that societies conceptualise’ (Mills, 2003: 104). Broadly, it was the ‘carceral texture of society’ that allowed for the surveillance of the body (Foucault, 1977: 304). More narrowly, it was the prison that was the main instrument in this new constellation of power-knowledge that took the body as its focus in the late eighteenth and early nineteenth century. The core unit of liberalism is the individual. The penitentiary project was constitutive of individuals and the cell was the central component in these individualising processes. However, it is not entirely correct to talk about the docility of these incarcerated individuals. To paraphrase Dumm (1987: 90), these selves were to rule as much as be ruled. The penitentiary, working at the level of the individual (and democratically so given that ‘the same operations applied to each individual’ (ibid.) saw the inculcation of the practices and understandings of ‘government’, as Foucault (1993: 203–4) put it. Its end point sees ‘the modern sovereign state and the modern autonomous individual co-determine each other’s emergence’ (Lemke, 2002: 2). In other words, the penitentiary was intended to produce the conditions and the capacity for citizenship. As such, the American penitentiary was central in constituting the New Republic. This centrality is not a retrospective piece of artifice

Michael Fiddler 25

recognised by Dumm or argued by this writer. Its importance was recognised at the time. As Rothman (1990: 81) states, by ‘the 1830s, the American penitentiary had become world famous.’ Talking of ‘asylums’ as a whole, which he takes to have included institutions for the mad, bad and sad, Rothman goes on to state that ‘[r]ather than stand as place of last resort, hidden and ignored, these institutions become the pride of the nation’ (emphasis added, ibid.: 79). Indeed, we might be reminded of the words of the Prison Commissioners who stated that Sing Sing was the pinnacle of prison design, not simply in America, but globally. In no small part, On the Penitentiary System in the United States, as well as the broader scope of De Tocqueville’s (1835) Democracy in America, served to highlight the place of the penitentiary in American society for European readers. Prisons were a vehicle by which they could explore the broader concerns of the political, social and economic. I would contend though that the prison was the most logical point of departure for such broad themes. As Dumm proposes, the penitentiary was a ‘project constitutive of liberal democracy’ (1987: 6).

Marginal: the wardenship of Mott-Osborne (1914–1916) …the quickest way out of Sing Sing is to come in as a warden (popular joke of the 1910s, cited by Gado, 2004). Just as Elam Lynds was the central figure around which the newly built Sing Sing revolved, so Thomas Mott Osborne and Lewis Lawes loom large in the history of Sing Sing. Both men brought a reforming agenda to their position, but with varying degrees of explicitness and success. Osborne’s tenure as warden was brief although not atypically short. Between 1900 and 1919, for example, there were ten wardens, some of whom ‘stayed as little as a few weeks’ (Gado, 2004: 7). He was a major political figure in Auburn, being its mayor and chairman of the State Commission on Prison Reform, as well as a newspaper publisher and manufacturer. His entry into Auburn’s penitentiary in September 1913 is best described as unusual. He elected to go in as an ‘inmate’. Going under the name Tom Brown, he spent a week inside Auburn: …to learn what I can first-hand…I am coming here to live your life; to be housed, clothed, fed, treated in all respects like one of you. I want to see for myself what your life is like, not as viewed from the

26 Punishment and Control in Historical Perspective

outside looking in, but from the inside looking out (Osborne, 1913, cited by Conover, 2001: 196). Although his intention had been to remain anonymous, his identity was revealed to staff and inmates the day before his arrival. Conover (2001: 197) describes Osborne’s account, published as Within Prison Walls, as being one of sentimental naivety. His fellow inmates were depicted as a ‘swell bunch of guys’, whereas those guards who were not actively brutal were likened to the ‘honorable and kindly…slave owners before the Civil War’ (ibid.: 197–8). His sense of the oppressiveness of prison rules and the possibility of finding ‘something far better to take [the] place’ of the penitentiary enamored him to inmates and distanced him from guards (ibid.). It also led to Osborne’s later position within the penitentiary system becoming increasingly precarious. Osborne was made warden of Sing Sing on 1 December, 1914. His major achievement was the establishing of the Mutual Welfare League (M.W.L.). This had taken on nascent form during his wardenship at Auburn. The M.W.L. was a means of allowing inmates a degree of selfgovernance. In a public address in 1905 he had criticised the penitentiary system for forcing men to work in a system that ‘brutalizes the men and the keepers’ (cited by Conover, 2001: 196). He declared, quite simply, ‘this is not reformatory’ (ibid.). Under the M.W.L. system inmate representatives were allowed input on the regime under which the penitentiary operated. His thinking was that responsibilising the inmates would inculcate those sentiments that the congregate system and its like had manifestly failed to do. Inmate representatives advised the prison authorities on matters of discipline in addition to organising sporting events and a commissary. Two stores were opened by the league in 1919 and used their own currency. The notes carried Osborne’s motto: ‘Do good, make good’. As Lawes (1932: 115) puts it, a warden must be a ‘benevolent despot as well as the understanding leader’. Whilst conceding that Osborne’s wardenship ‘ended too soon’, Lawes (1932: 115) does condemn it as resulting in ‘chaos.’ Principally, Lawes criticises Osborne’s weak leadership, seen as a function of devolving power to the inmates, and a fatal misunderstanding of the prison population. Indeed, Osborne’s political grandstanding, ‘coddling’ of the inmate population and anti-capital punishment pronouncements had done little to endear him to his political rivals. Conover (2001) describes a series of conspiratorial plans designed to discredit him. In 1915 he was accused of committing ‘various unlawful and unnatural acts with inmates’ (ibid.: 199). An

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inmate (‘Fat Alger’), who had been labelled as an informant for the Superintendent of Prisons and been transferred away from the prison, had made the allegations. Osborne was indicted on the charges, but they were subsequently dismissed. He returned to the prison, but resigned in 1916. As Lawes (1932: 114) argues, whilst Osborne’s influence diminished in the following years, he had nonetheless ‘introduced the prison to the public. He made it a subject of free and popular discussion in the Press and on the platform.’

Marginal: the wardenship of Lewis Lawes (1920–1941) Lewis Lawes’s (1932) book, which encompassed the history of the prison, his somewhat self-aggrandising reminiscences over his time as Warden and his own progressive thoughts on penal thinking, was entitled Twenty Thousand Years in Sing Sing. The title was derived from the aggregate sentence facing the 2500 men contained within the prison walls at his time of writing. As Lawes powerfully put it, [w]ithin such cycles worlds are born, die and are reborn. That span has witnessed the evolution of the intelligence of mortal men (1932: 244). In 1920 Lawes became warden of Sing Sing. He would stay in the post for some 20 years and became ‘America’s most famous and admired warden’ (Conover, 2001: 199). His initial course of action was the steady dismantling of the M.W.L.. Lawes withdrew the element of selfgovernment from the prisoners, replacing it with the administration’s ‘despotism’, albeit ‘an enlightened one’ (Conover, 2001: 200). Initially there was one cell block and a dormitory. Lawes then presided over an extensive building program in the 1920s that would radically change the shape and face of Sing Sing. In 1926, the state approved a budget of $2,775,000 for the construction of two colossal new blocks (A and B). They had a combined capacity of 1,366 and were the largest cellblocks in Western prison systems. A visitor in the 1930s described them as ‘beautifully finished and very light and airy’ (Cox, 1986: 50). By 1930 a mess hall, chapel, new Death House, laundry, bathhouse and barbershop had been built whilst the industrial plant workshops were rebuilt. Between 1920 and 1932, some eight million dollars had been spent on construction at Sing Sing and cell capacity stood at 1,752. During Lawes’s wardenship, the acreage of the site rose from 14 and a half to 47 and a half.

28 Punishment and Control in Historical Perspective

Sing Sing remains the only prison in the world where commuter train tracks run through prison grounds. The train tracks act as a marker, dividing the old cell block from those constructed under Lawes’s wardenship, further up the hillside. It became evident in the early 1900s that the original, century-old cellblock was fast approaching the end of its usefulness. Overcrowding made living conditions untenable. The State Prison Improvement Commission had described it in 1905 as ‘verily…far worse than living in a sewer’ (Conover, 2001: 202). A bid in 1917 to demolish the cellblock led to the removal of a ‘floor and a half’ (ibid.). However, the demolition remained incomplete and prison numbers dictated that the partially demolished cellblock remain open. Conover (2001: 202) quotes the official departmental history as describing how, in a wonderful turn of phrase, the old cell block ‘continued to swallow thousands of inmates into its malevolent, malodorous maw.’ By 1943 the old cell block was finally closed. The bars and doors, ‘of which there were many,’ were melted down for the war effort (Gado, 2004: 8). The roof burned down in 1984 leaving an outer shell. It has since been ‘listed on the National Register of Historic Places and can never be removed’ (Cheli, 2003: 126). During Lawes’s wardenship there was an intriguing juxtaposition of the construction of the brute monumentality of the prison buildings and the work of a number of inmates to improve their environment (the celebrated ‘Roseman of Sing Sing’ being a notable example). In a way, this echoes the juxtaposition of prison and landscape. As Lawes poetically states, [o]ne can follow for miles the wide sweep of the Hudson, as it eddies its endless flow and disappears around a distant bend, majestically unconcerned with the problems of the variable human who clings to its shore in intermittent cycles of its countless years (1932: 209). The old cellblock was built on ‘a foundation of crushed rock, trodden cinders and old scrap iron’ (Lawes, 1932: 232). It was built, in other words, on (and by) the exhaust of industrialisation. With no apparent irony, Lawes wrote, ‘[i]t is scarcely the sort of thing to support plant life’ (1932: 232). Nor, we might imagine, to support the countless lives of the prisoners housed there. Sing Sing took its place in popular culture by appearing as the backdrop to several Hollywood gangster films. The Big House (dir. G. W. Hill, 1930), Angels with Dirty Faces (dir. M. Curtiz, 1938) and 20,000 Years in Sing Sing (dir. M. Curtiz, 1932) used the penitentiary as a character.

Michael Fiddler 29

The trailer for the latter describes Lawes as ‘[t]he man who lives on the volcano of human passion’! The cinematic countenance of Sing Sing ‘helped to form an image of the prison in the public mind that exists even today’ (Gado, 2004: 13). During and after Lawes’s wardenship film stars and entertainers were brought into Sing Sing and encouraged to speak to the inmates. These included James Cagney (the lead in Angels with Dirty Faces), Spencer Tracey (star of 20,000 Years in Sing Sing) and Harry Houdini (we might wonder what his talk concerned). Lawes allowed filming within the prison and Warner Bros. reciprocated by paying for a gymnasium to be built in 1934. It was, apparently, ‘on par with any collegiate gym of the time’ (Cheli, 2003: 75). The building now stands idle. Curiously it resembles a sound stage and so expresses rather neatly the syncretic relationship of cinema and location. Where the Lawes era had been one of a perverse prosperity with the popularity of the prison on film allied with the 1920s/30s building boom, the post-war period marked a down turn. Symbolically this is reflected in the use of the industrial shops and power plant. The power plant was built by inmates and represented a $1 million ‘state-of-theart’ venture (Cheli, 2003: 64). For Lawes it had embodied the ‘spirit of the new Sing Sing’ (1932: 209). Down by the river’s edge it rose up ‘in a commanding gesture toward the heavens’ (ibid.). Lawes used Beaumont and De Tocqueville’s reference to ‘honest habits’ a century earlier to describe its utility: [t]o me it is a symbol of what we hope to make of Sing Sing – an industrial plant where men will labour willingly and hopefully; where they will learn to perfect themselves in the ways of honest toil (1932: 209). During the 1960s ‘most of the industrial shops and buildings in the lower yard were torn down to make way for a proposed new state road’ (Cheli, 2003: 68). The new road never materialised. The now vacant power plant has become yet another layer of industrial sediment on the shore of the Hudson.

Marginal: defining the ‘monumental’ prison The first half of the twentieth century saw the beginnings of what I will refer to as the ‘monumental’ prison. I wish to focus here on the meanings that we can take from the cell blocks that were constructed under Lawes’s wardenship. The ‘look’ of the monumental prison, as I

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shall refer to it, was typified by the telegraph pole and self-enclosed designs. The former consisted of a central spine or corridor off which cell blocks and other services were located at right angles. The latter saw the cellblocks themselves form part or all of the prison enclosure. The first telegraph pole design in the United States was at the Minnesota State Prison (completed 1913–14). Subsequently, the 1930s saw the ‘enthusiastic’ adoption of the design by the federal government (Johnston, 2000: 141). Sing Sing’s A and B blocks offered a truncated version of this. Rotman (1995: 165) bluntly refers to the ‘superficiality of Progressive reforms in recreation, work, and assimilation with the open society’ within the Big House. This was another failed penal experiment. Instead of reform, ‘in the world of granite, steel, and cement, the dominant features were stultifying routines, monotonous schedules, and isolation’ (ibid.). This description encapsulates the starkly functional, monolithic nature of the Big House with its huge, elongated cell blocks. The irony of the term itself is acute. There is little sense of domesticity in the vast blocks at Sing Sing. Yet, this world also describes that outside the prison walls. Aside from the Depression, this was a time of the construction of an entire world of granite, steel and cement. Incarceration, on the grand scale of the Big Houses, simultaneously distanced the prison population from this swiftly developing world whilst locking them within one of it vast symbols. Jencks (1993: 75) uses the term ‘mono-architecture’ to describe those buildings that are ‘reduced, exclusive…sealed off from life and change’. These are the properties I envisage the monumental building to possess and, by extension, so too the monumental prison. The blankness of the monumental prison contrasts starkly with that of the elaborate gatehouses of prisons built in the late eighteenth and early nineteenth centuries during the ‘central’ period. What I mean by the ‘monumental’ prison is that it combines the extreme functionalism of New York’s tenement buildings of the late nineteenth century with the scale of the City Beautiful ethos and the modernist utopia of Le Corbusier’s Ideal City. Let us start with Le Corbusier. I do not wish to add to the ‘monotonous regularity with which Le Corbusier has been represented as a malevolent, all-powerful force for evil’ (Sudjic, 1993: 18). Rather, I wish to simply illuminate the similarities between the Corbusian living block and the filing cabinets of stone of the Big House. Hall, P. (2002: 226), for example, describes the plans of Soviet architects, the urbanists, who had been influenced by Le Corbusier: ‘[t]hey wanted to

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build new cities in open countryside, in which everyone would live in gigantic collective apartment blocks…’ For Le Corbusier, the house-machine would consist of ‘cells’ and be one amongst many other mass-produced ‘units’. Each would be like the last without ‘any kind of individual idiosyncrasy’ (ibid.: 224). The cell would be the base form with nothing ‘more or less than the minimum necessary for efficient existence’ (ibid.: 225). This echoes, of course, the rigorous equality of the prison. We also see in Le Corbusier’s designs, the same metaphor of the machine and the regimented, disciplined life that had been applied to the prison. These were to be machines for living in, representing a ‘normalizing morality that seeks to reduce all differences to an economic order of the Same’ (Smith, 2001: 31). The Big House looked back to Burnham’s 1893 Chicago World’s Fair designs and forward to those of Speer’s Berlin and Lutyens and Baker’s New Delhi. Yet it was not in any elaborate detail of design that the Big House spoke, rather it announced itself through its scale. It took on an ‘iconic role’ (Lefebvre, 1974/5, 2003: 152). It acted to produce consensus by offering ‘each member of a society an image of that mem bership’ (Lefebvre, 1991: 139). The monumental prison projected for those people outside of its walls the message of inclusion or rejection thereby imposing consensus upon those outside. Lefebvre (1991: 225) points to the ‘two “primary processes”’ of the monument: it displaces and condenses. In the instance of the monumental prison, it condenses the incarcerated into an undifferentiated mass. As such, they are deemed fit to be housed in these gigantic housing blocks. Yet why should we not also consider those prisons of the earlier ‘central’ period to be ‘monumental’? It is the stripping of the architectural artifice, what Benjamin (1936) would refer to as the ‘aura’, and the simultaneous leap in scale that lends it this monumental characteristic. The prison no longer needed those accruements to tell the massed throng how to react to it. Indeed, their own ‘folk’ readings of the prison carried with them elements of the ‘Gothic’ (see Fiddler, 2006, 2007). This was a blank canvas upon which condensing and displacement could occur. This is what made it so powerful on film. The scale was imposing, but the blank façade made it susceptible to displacement by the mass audience. The ‘monumental’ prisons were not just physically marginal in that they were increasingly constructed away from cities. They also distanced the incarcerated from those outside by the messages that they projected and that were, in turn, projected upon them.

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Further, we can use Bauman (1995) and Young’s (1999) reading of phagic and emic strategies to describe the difference between the periods of centrality and marginality. The initial period of centrality could be seen as an attempt to assimilate the unreasoned, unproductive Other into the productive labour force. As the nature of capitalism and modes of production altered, so the requirements of industry changed. A disciplined workforce of the type, in part, created by the prison was no longer required. The inclusive strategy of the prison had ended. So that waste would be minimised, the inclusive strategy (of the prison) swung around to an exclusive one. Alternative inclusive strategies were employed that ran in parallel with the prison (Simon, 1995). The workforce could now be placed in reserve. Those individuals representing disorder would remain in the monumental space of the prison. The prison no longer occupied its central position in relation to factories and similar such institutions. A modern workforce was no longer going to be disciplined or created within its walls. The offender was to be removed from society and stored in the ‘Big House’. Berman (1982: 19) powerfully states that the processes of modernity are ‘capable of the most spectacular growth, capable of appalling waste and destruction.’ So it is that the marginal prison was produced to contain those ‘left behind’. The prison became an essential feature in channelling this human waste, this exhaust of modernity.

Adjunct: a prison and urban population of redundant ‘republic machines’ Berman talks of the various ‘symbolic expression(s) of modernity’: the Brooklyn Bridge, Times Square and the Bowery (1982: 289). It is quite possible to add Sing Sing to such a list. Penitentiaries were, as one contemporary critic put it, ‘grand theatre[s], for the trial of all new plans in hygiene and education, in physical and moral reform.’ (unknown, cited by Rothman, 1990: 84). Certainly during the central period discussed earlier, the penitentiary (and Sing Sing more narrowly) was envisaged as just such a ‘grand theatre’ to demonstrate the ‘project of Enlightenment’ (Dumm, 1987: 5–6). The marginal period that saw the development of what I have called a ‘monumental’ aesthetic, also saw the purpose of this ‘theatre’ change. As a marginalised space, the prison acted as the end-zone repository for the ‘Other(s)’ of society. The marginal space created a ‘segregated and insulated institution [making] the actual business of deviancy control invisible, but it did make its boundaries obvious enough’ (Cohen, 1996: 401). Now we might

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talk of a continuum where it is difficult to define ‘where the prison ends and the community begins’ (ibid.). It is no longer the case that these populations are subject to either-or phagic and emic strategies. Rather they encounter varied and alternating types of both from a range of institutions. Where Garland (1985) described the positioning of the prison at a terminus point, the far end of a continuum of institutions of punishment and welfare, the twenty-first century prison is an adjunct to the contemporary urban environment. To appropriate Lefebvre’s (1991) metaphor of the permeability of the space of a house, so the prison is a node in a series of outward and inward energies, carceral and otherwise. The prison walls give the ‘appearance of separation’, but there is also an ‘ambiguous continuity’ (ibid.: 87). There is now an uncanny confusion of interiority and exteriority. It is not simply that the urban and carceral mimic one another’s aesthetic or that contemporary ‘Metropolitan Detention Centers’ bring the penitentiary back toward the city (Fiddler, 2006, 2007). Wacquant (2001) talks specifically of the socio-cultural syncretism of ghetto and prison (where once we would have spoken of the socio-economic syncretism of prison and factory, also see Concluding Remarks). As such, instead of the discipline of the ‘central’ period or the deskilling of the ‘marginal’, we presently see the undisciplining of this population in the ‘adjunct’; a stripping away of expectations. The urban and incarcerated populations are no longer required to participate in the labour market (save for perfunctory ‘workfare requirements now imposed upon the free poor as a requirement of citizenship’ (Wacquant, 2002: 54)). As such, the disciplining of the workforce is a redundant concept. We see a gravitational pull between these adjunct or ‘“residual” spaces’ of the urban and prison, between that of welfare/workfare and incarceration (Allen, 1999: 250). In essence, this is a type of training, but only to be stationary in a late-modern period that values mobility. The goal is no longer to produce ‘republic machines’, but merely to contain (Dumm, 1987: 95).

2 Reconceptualising Social Control: A Case-Study in Gender, Punishment and Murder Anette Ballinger*

It is not difficult to demonstrate that a casual usage of ‘social control’ metaphors leads to non-explanation and incoherence. There is no political or ideological institution which could not in some way be interpreted as an agency of social control. There is no indication in the phrase of who the agents or instigators of social control may be: no constant criterion whereby we may judge whether social control has broken down – certainly not conflict, for this may ultimately, or even inherently, be a means of reinforcing conformity. Nor finally is there any fixed yardstick whereby we may know when social control has been reimposed (Stedman Jones, 1983: 42). Lacking any precise definition and consistent use, the concept was aptly described by Cohen (1985: 2) as ‘Mickey Mouse’ and by Lowman et al. (1987: 4) as ‘a skeleton key opening so many doors that its analytic power has been drained … a spectral category which becomes all things to all theorists’ (Wilson, 2006: 392). First popularised by Edward A. Ross in 1901 who intended it to refer to ‘a constraining social element which held in check man’s darker animal side’ (Stedman Jones, 1983: 44), the term ‘social control’ has been described as ‘a poorly defined concept which has been used to describe all means through which conformity might be achieved – from infant socialization to incarceration’ (Wilson, 2006: 391). It is therefore the aim of this chapter to offer a critical reappraisal of the concept in order to explore whether it alone has the ability or potential to offer an adequate explanation of the complexities of the interactions between individual women and powerful arms of the state such as the criminal justice system. More 34

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specifically, the chapter explores how useful the concept is as an analytical tool through the case-study of Ada Allen who stood trial for the murder of her husband Donald in 1945. Until the arrival of second-wave feminism in the UK during the 1970s, the concept ‘social control’ had been mainly associated with the relationships between different social classes, with specific focus on the impact that middle class reform movements had on the lower classes. Thus, the activities of various nineteenth century welfare, relief and reform movements have often been interpreted as having a hidden agenda of transposing middle class moral values onto working class populations through charity. This interpretation maintains that industrialisation and urbanisation led to a breakdown of the pre-industrial social order which traditionally had been community-based. The perceived crisis generated by this breakdown led to the middle and upper classes designing new social control measures to be imposed on the working class in general and its ‘disreputable’ elements in particular, in order to teach them ‘selfdiscipline, industry, punctuality, thrift’ and temperance (Mayer, 1983: 17–18). Much of the work in this area has therefore been developed by conceptualising social control in a ‘top-down’ manner, emphasising the functionalist aspect of the concept and over-emphasising the homogenised motives of the ‘controllers’ at the expense of the agency and perspective of the ‘controlled’ (Morrison, 2005: 69).

Social control and feminism With the arrival of second-wave feminism during the 1970s the concept underwent a theoretical modernisation as feminist theorists embarked on the process of genderising it. While feminists recognised from the beginning that within a society deeply divided by social class, both men and women ‘are subject to material, repressive and ideological forms of social control’, writers such as Smart and Smart noted in their classic text Women, Sexuality and Social Control, that women’s experience of social control is related specifically to discourses embedded within the social construction of femininity – namely those of sexuality, respectability, domesticity, and motherhood. Furthermore: The social control of women assumes many forms, it may be internal or external, implicit or explicit, private or public, ideological or repressive (1978: 2). Smart and Smart further identified four specific areas within which women alone are socially controlled – those of the reproductive cycle;

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the double standards of morality; a subordinate social and legal status within the family and the ideology of woman’s place which lies at the heart of ‘the separation of “home” and “work”’ (1978: 3). Together with other early influential works such as Hutter and Williams’s (1981) edited collection, Controlling Women, Smart and Smart’s Women, Sexuality and Social Control had thus established analytical concepts which were to become the cornerstones of feminist challenges to the dominant heteropatriarchal nature of criminology ‘for decades to come, and which helped to expand the criminological agenda by emphasising the gender-specific social control experienced by women in both the public and private spheres’ (Ballinger, 2008: forthcoming). Building on such early work, Heidensohn explored the role that women themselves had played in dispersing social control through nineteenth century charities and reform movements. Through charitable work, and later through ‘the semi-professions of nursing, midwifery, social work, etc.’, middle and upper-class women gained a public role within ‘the system of social control’ (1985: 172–3). However, women’s public connections with various agencies of social control can be understood as interpositions ‘between the state and the people, strategically softening the sternness of [state] power,’ and making ‘life for the poor a little more acceptable.’ In that sense, such agencies remained within overall ‘patriarchal control’ (Heidensohn, 1985: 173, 172). The 1980s also saw the publication of influential studies on the subject of women and punishment by authors such as Rafter and Carlen who identified the gender-specific nature of social control within reformatories and prisons. Rafter employed a gendered version of the concept in order to explore its impact on institutionalised women in her historical study ‘Chastising the Unchaste’ which focused on the social control mechanisms being utilised in a New York reformatory for women in the period 1894–1931. She identified a range of non-criminal behaviours which could result in incarceration in the Albion reformatory. Such behaviour included ‘promiscuity, vagrancy and saloon-visiting’, which, when engaged in by men, did not result in similar penal interventions (1983: 288, 291). Through a policy of ‘rescue and reform’ Rafter identified how mechanisms of social control legitimised the double standards of morality as ‘a new segment of the female population’ – those who cared little for conventional notions of female propriety’ – was deemed in need of being taught ‘the values associated with the lady

Anette Ballinger 37

– refinement, propriety, decorum’ (1983: 291, 293). Rafter concluded that this net-widening of penal institutions for those who failed to display acceptable standards of femininity arose as a consequence of ‘the solidification of gender roles in nineteenth century America as well as the hardening of divisions between social classes’. Within this context reformatories taught working-class women ‘to accept a new concept of gender which entailed restriction of their sexual and vocational choices’ (1983: 306, 307). In her contemporary study, Carlen noted that female defendants are not only judged according to the crimes they have committed, but also according to ‘the court’s assessment of them as wives, mothers and daughters (1988: 10). This assessment would inevitably focus upon issues related to the discourses of femininity identified above – sexuality, respectability, domesticity and motherhood. In 1987 Green, Hebron and Woodward articulated a definition of social control which captured its gender-specific nature: Social control is defined as an ongoing process, one element in the struggle to maintain male hegemony which sets the limits of appropriate feminine behaviour (1987: 79). Hence, by the end of the 1980s a host of pioneering feminist and other critical work had provided detailed analyses which demonstrated not only the gender-specific nature of social control, but also the role that such control plays in constructing ‘normal’ versus ‘deviant’ womanhood. In particular, the discourses of respectability sexuality motherhood and domesticity were identified, as both the means by which women can be socially controlled, and ‘as key variables when women come into contact with the criminal justice system – whether as victims or perpetrators’ (Ballinger, 2008: forthcoming).

The demise of social control The increasing influence of postmodern feminism and identity politics during the 1980s and 1990s played an important role in the demise of the concept of social control. As feminism became pre-occupied with issues of ‘difference’ between women – in turn resulting in the destabilisation of women as a category – the idea of women being ‘socially controlled’ became increasingly unfashionable. Instead the concept became associated with the accusation that it had contributed to the ‘over-generalisation’ and ‘over-simplification’ of the complexity of

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women’s oppression. McNay, for example, argued ‘that gender is not the only determining influence on women’s lives’. Rather: any individual’s life is determined by multiple factors which conflict and interlink with each other, producing differential effects … against this background of multiple determinants, individuals act upon themselves and order their own lives in numerous and variable ways (1992: 64, 65). Thus, attempts to conceptualise female oppression within a general ‘patriarchal’ framework was now itself the target of feminist critique due to its ‘North-American/Euro-centric’ nature: An insistence on women as passive victims of male oppression oversimplifies the complexities of women’s subordination by placing too great a stress both on the universal nature of oppression and the common undifferentiated enemy of patriarchy (McNay, 1992: 64). Yet, it is important to note that the portrayal of early feminist social control theory as over-generalised and universal – branding ‘all men as the upholders of patriarchy’ (Tosh, 2004: 45) and locking all women into the role of eternal and passive victims – was itself an over-simplification of the core arguments of second-wave feminism. For example, Hartmann recognised in 1979 that not all men are equal or necessarily located in positions of power. Instead ‘patriarchy is a set of social relations which has a material base and in which there are hierarchical relations between men and solidarities amongst them, which enable them to control women’ (cited in Tosh, 2004: 46). Thus, there are examples in feminist literature during the 1970s and 1980s which demonstrate that the concept of social control never referred ‘to a crude or conspiratorial model of oppression’ in which all women are perpetual victims – kept in a subordinate position by the iron fist of patriarchy (Ballinger, 2000: 41). Instead postmodern feminism and identity politics can – with hindsight – be conceptualised as having over-played issues of ‘difference’ and ethnocentricity: at the expense of the structural inequalities that early feminism identified and campaigned against. Tosh has observed: Multivalence and contingency can … be overplayed. The virtual absence of ‘patriarchy’ from the scholarly lexicon at the present time points to a disconcerting shift away from those deep-set and

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enduring inequalities between men and women which informed scholarly work in the 1970s and 1980s (2004: 56). Perhaps a fairer evaluation of the gender-specific analysis of social control in early feminist literature is the rather cursory attention paid to issues relating to its impact on the construction of respectable and disreputable masculinities, as well as the state’s role and interest in the maintenance of such control and gender conformity as far as both women and men are concerned. Furthermore, this early work has also been accused of being reluctant to deal with the agency of women who commit violent crime, preferring instead to rely on stereotypes of women’s passivity, or that they had little or no idea of what they were doing – their actions understood as unintentional – ‘the result of pathology rather than reason and rationality’ (Ballinger, 2005: 70). According to Wilczynski: … criminality in women is rarely, if ever, seen as a rational reaction to life stresses, or as a response to social, political or physical inequalities, as is often the case with men (cited in Morrissey, 2003: 33; Ballinger, 1996; Allen, 1987). While the portrayal of female violence as unintentional and irrational may help to ensure a favourable sentence for individual female defendants, it harms the wider cause of feminism because it ‘undermine[s] a concept of women in general as fully fledged moral subject and responsible agents’, and therefore as citizens equal to men (Morrissey, 2003: 35). As I have documented elsewhere, it is relatively unproblematic to demonstrate the influence of androcentric law as a social control mechanism in cases where women have refused to present themselves and their violent act through the dominant discourses of acceptable femininity. For example, the execution of Ruth Ellis is widely regarded as being the result of not only her crime, but also her failure to conform to the discourses of respectability, domesticity, sexuality and motherhood discussed above (Ballinger, 1996, 2000). Yet, if feminism is to engage with notions of social control at all, it is vital that it has available an analysis so robust, rigorous and complex that it can also encompass cases like that of Marie Fahmy who – despite being a woman with a ‘past’ very similar to that of Ellis and having committed a crime in almost identical circumstances – nonetheless left the court a free woman after being found ‘not guilty’ on all counts (Ballinger, 1996).

40 Punishment and Control in Historical Perspective

To meet this demand, the analysis in the remainder of this chapter will avoid the use of a universal and generalised ‘top-down’ conception of social control and will instead incorporate an additional two key themes – those of masculinity and agency. First, I shall demonstrate that it is not only women who can be socially controlled through discourses around appropriate femininity, men who fail to conform to the social construction of ‘respectable masculinity’ may also be perceived to be problematic to the dominant social order, and may subsequently suffer the loss of both ‘manly’ honour and status as a victim, despite having been killed by their female partners. In doing so, I shall argue that a message is sent out to men as a category about their personal conduct and responsibilities within a heteropatriarchal social order which may also be regarded as a form of ‘social control’. This is not to say that men and women are equally socially controlled. As will become apparent, it is the gender-specific production and re-production of the male and female subject, and their place within the overall heteropatriarchal social order which is at issue. More specifically, with respect to the Ada Allen case analysed below: We need … to consider the ways in which law constructs and reconstructs masculinity and femininity, and maleness and femaleness, and contributes routinely to a common-sense perception of difference which sustains the social and sexual practices which feminism is attempting to challenge (Smart, 1995: 79). Second, I shall explore the limitations of the concept ‘social control’ by placing it within the context of women’s culpability, responsibility and agency when they commit crimes of violence. The central arguments presented in this chapter therefore seek to emphasise and elaborate upon the complexities and limits involved when applying the concept of social control to particular social groups, thereby avoiding the over-generalisation and over-simplification implied by the term as outlined in the opening quotes of this chapter.

The case of Ada Allen Ada Allen killed her husband Donald in June 1945 after 12 years of marriage. Donald was frequently away from home for long periods of time due to his employment as an RAF pilot. Whilst home on leave Donald and Ada spent the evening of the 9th June drinking

Anette Ballinger 41

in a bar when Donald commented that another women in the bar had ‘nice legs’. According to Inspector Hills, Ada described the sequence of event leading up to the murder in the following terms: We were so happy this afternoon. We went to the Wellington this evening. My husband kept on remarking what nice legs a girl there had got until I couldn’t stick it any longer and I left in disgust and came back home. He came later and said he had decided to walk out on me at last and that he really meant it this time. I said ‘Donald Darling do you realise what you are doing’. He repeated that this was final and that he was going. I reached for the revolver and did not realise it was cocked. I held it towards him. It went off.1 (emphasis added). While giving her statement to Inspector Hills: the accused who had been sobbing bitterly broke down completely and leaned against me for support … Still crying she said, ‘I loved him. He knows I wouldn’t hurt a hair on his head. How is he? Let me go to him. I can’t live without him; he is my life. He knows I love him and he plays me up.’2 She offered a rather different version of events to Inspector Price: Don kept looking at other women’s legs. I did not like it. He gave me two or three brandies. I left him at the Wellington and came home. He followed me home and when we got home we quarrelled. I took the gun out of the top drawer of the cabinet. I knew it was half cocked and I pulled it. I meant to shoot him in the legs.3 (emphasis added). [Donald was shot in the groin]. Both Inspectors Hills and Price agreed that when they arrived at the murder scene Ada was in a ‘very distressed’ condition, and Chief Superintendent Wakefield agreed that she was ‘suffering with emotional strain’ when she arrived at the police station.4 Similarly, nurse Sheppard stated that when Ada sought medical help for Donald after the shooting, ‘her condition was very distressed and distraught’, explaining that: … she and her husband had been quarrelling and that they were always quarrelling. He told her he was going to leave her and she

42 Punishment and Control in Historical Perspective

did not know what she was doing and shot him in the stomach with his Service revolver.5 Night sister Mary Downs agreed that ‘she was extremely distressed and agitated beyond words’ and said: I have shot my husband in the stomach. We are always having fights and I have just shot him in the stomach.6 Finally PC Trinder who interviewed Ada, confirmed that ‘she was very agitated’ and deeply concerned about the condition of Donald.7 Witnesses also gave evidence relating to the immediate aftermath of the shooting before either police, or hospital staff, were called. Clive Jones who lived in the flat above the Allens’ basement flat testified that when he arrived at the scene of the shooting after being called by Ada, ‘she was very distressed and very hysterical’. After arriving with her at the hospital to seek help she ‘became more hysterical than ever’.8 Clive’s friend, Kenneth Hyett, agreed that Ada ‘was very hysterical, crying and holding her head in her hands’: She kept saying, ‘Oh Ken oh, Ken’ … She bent over the deceased and said, ‘Oh darling I love you, I love you’.9 When Ada stood trial for the murder of Donald at Birmingham Assizes one month later, she testified that: Her husband was pummelling her; she tried to get away, and reached out for something with which to protect herself. Her husband … struck her again and ‘the gun went off’. She had no intention of firing the shot.10 After an hour and a half of deliberations the jury returned ‘a verdict of “Not guilty” of murder, but “Guilty” of manslaughter’. The verdict was followed by ‘half-an-hour packed with drama’ when Mr Cartwright for the prosecution revealed further details of Ada’s ‘wretched life’ as a result of having discovered letters amongst Donald’s belongings which indicated he had been ‘grossly unfaithful’.11 These letters had been passed to the defending counsel who told the court that Donald had been using ‘pen clubs’ as a

Anette Ballinger 43

means to befriend women with whom he would subsequently have affairs: She has had to go through all that and has had to leave him on two or three occasions owing to his ill-treatment of her … the man was reduced from the rank of squadron-leader to that of flight-lieut. Because of similar things happening with women on the aerodrome … In view of the fact that she has been a decent clean-living woman and done her duty; and also in view of the jury’s recommendation of mercy, I appeal to you to take a very lenient course.12 This glowing character reference was echoed by the prosecutor, Mr Cartwright Sharp: On behalf of the prosecution I can say the prisoner is a woman of excellent character … [who has] had a wretched life owing to her husband’s association with other women.13 After listening to these additional statements by both the defence and prosecutor, the judge too became extremely sympathetic to the plight of Ada, remarking: If the jury had known all we now know about your married life and you had been wise enough and honest enough to have told them … they might have acquitted you altogether … I am going to take a course I have never taken before.14 This unprecedented course of action took the form of the judge sentencing Ada ‘to imprisonment for the term of the Assizes – nine days’, consequently, she left the court a free woman.15 A picture had thus emerged of a ‘clean-living’, ‘decent’ and ‘dutiful’ wife who had obeyed all the rules associated with respectable, domesticated and obedient womanhood, and hence complied with the discourses around appropriate feminine conduct outlined above, yet was wronged by a brutal philanderer who repeatedly ‘mistreated’ and betrayed her. However, on closer examination a different picture emerged. Relatives and neighbours who saw and heard the couple on a regular basis such as Olive Jones, Ken Hyett and Lena Carpenter all testified that the couple ‘gave the impression that they were quite happy together’.16 Robert Page, the licensee of the couples’ local pub agreed that he ‘neither saw nor heard anything to give me cause or reason to believe that the deceased

44 Punishment and Control in Historical Perspective

and his wife were not on the best of domestic relations’.17 This was further confirmed by a friend of the couple who was with them immediately prior to the shooting: They were on the very best of terms and during the quarter of an hour or so we were in their company I did not hear either of them make a complaint. There was certainly no suggestion of any friction between them. They were in what I would describe as a cheerful and happy mood and jokingly referred to the fact that they had been drinking brandy at their home since six o’clock that evening.18 More specifically, Clive Jones who lived in the flat above, testified that immediately before the murder the radio was on ‘and I could hear the accused singing’. When Donald returned ‘I could hear them laughing.’19 Kenneth Hyett confirmed that he too heard laughing immediately prior to the shooting.20 Thus, while Ada’s sister, Lena Carpenter, made reference to the couples’ differences in the past due to Donald’s womanising, no evidence was presented in court to support the view that the couple were having relationship problems either immediately prior to the shooting or in the recent past. On the contrary, Lena testified, that ‘when he came home [on leave] they used to go out together and were happy’ and on the afternoon of the murder ‘they were quite happy’.21 At a different level, the medical condition of Ada upon arriving in prison did not support her claim that Donald had repeatedly ‘pummelled her in the face’22 prior to the shooting – the doctor finding only ‘a small bruise upon’ her thigh.23 In terms of the period leading up to the shooting, while indisputable evidence of Donald’s unfaithfulness was available to the prosecution in the form of letters written by two women he had associations with, a number of other letters written by Ada to Donald were also available. These letters do not support either Ada’s own, or the court’s presentation of herself as the innocent, respectable and dutiful wife, who ‘had had a wretched life owing to her husband’s association with other women’.24 Instead they reveal a woman in possession of considerable agency who did not shy away from an active social life and the company of other men when Donald was away. For example, she wrote in one letter: I had quite a good evening dancing Saturday night … everyone including myself got very boozed and ended the evening singing for

Anette Ballinger 45

the boys which they enjoyed very much … I am being very good – well as good as you could be if you were here.25 One week later she wrote: I was wolfed by Bill Nash … he had a beautiful line and looked amazed when I told him so. I didn’t get tight darling and was only kissed very hard, don’t you think I’m a good girl.[?] In the same letter she referred to two American army captains who had asked her for a date, whilst also reminding Donald of the temptations facing him while away in France: Hope you haven’t been getting too fond of any french [sic] dames – I shall get awfully mad if you don’t take care dear, even if they do look nice – I shan’t fancy myself very much with no eyes and a nose eaten away with disease.26 Several other letters described Ada and her friends’ busy social lives which included getting drunk frequently in various pubs and bars and coming ‘home with a strange yank’.27 In one letter she reassured Donald that ‘[I] haven’t bothered about finding anyone to take your place … in any case the men are lousy so I’m not worried’, whilst again warning Donald about catching a sexually transmitted disease: ‘… be careful of the wolverines and dont [sic] get any extras to bring home to me’.28 Finally, she wrote to one of the women Donald had an affair with, identifying herself as his wife – presumably to deter this woman from seeing Donald again – but also admitting ‘that she [Ada] was having an affair with another man’.29 Taken together, Ada’s correspondence therefore challenged her portrayal in court as a passive, meek, much put upon victim being brutalised by a faithless husband, and instead suggested a more complex relationship within which Ada’s personal conduct was not dissimilar to that of her husband. Furthermore, her relaxed and humorous accounts of her busy social life – including references to other men she was seeing – does not suggest a woman terrorised by a brutal husband. How then, can we explain her nine-day sentence? Women, however obedient and compliant, do not as a rule receive nine-day sentences for shooting dead their husbands, even in circumstances where there are other mitigating factors, as for example, the aforementioned Ruth Ellis

46 Punishment and Control in Historical Perspective

case demonstrates, who was executed in 1955 for shooting her faithless lover (Ballinger, 2000, 1996). While headlines such as the Daily Herald’s ‘“Excellent Wife” Shot Brutal Husband: Freed’30 demonstrate the importance of Ada being able to present herself through the discourses of appropriate femininity discussed above, any suggestion that the ‘social control’ aspects of these discourses are always and necessarily repressive in nature and work in favour of the ‘controllers’, and thus to the detriment of the ‘controlled’, is clearly challenged by the outcome of her trial. As can be seen from the evidence above, her construction as a helpless, victimised wife in need of protection became particularly effective as a result of being juxtaposed against Donald’s construction as a philandering, violent brute, a discourse in direct conflict with ‘respectable masculinity’. In the following section I therefore explore issues around the social construction of masculinity and its impact on the final verdict in Ada’s case. This analysis will allow for the exposure of both contradiction and conflict within the criminal justice system, which in turn challenges the top-down application of the concept ‘social control’ outlined earlier.

Theoretical implications: masculinity and social control Just as concerns have been raised about ‘over-generalising’ the complexities involved in the process of socially controlling women, so the concept of masculinity cannot be reduced to a unitary, self-explanatory term (Hearn, 1996: 203). Instead it is the existence of ‘multiple masculinities’ (Strange, 2003: 311), embodying ‘multiple dimensions’ which should be recognised (Haywood and Mac an Ghaill, 1996: 51). Nonetheless, it has been widely acknowledged that ‘within the broader changes in family structure’ which the Industrial Revolution initiated, the masculine ideal was transformed into the ‘man of law’ still recognisable today (Collier, 1995b: 207; Naffine cited in Collier, 1995a: 208; Wilcott and Griffin, 1996: 86). Thus, while women experienced new forms of social control through the ‘modernisation of patriarchy’ (Bartky, 1990), a process which involved the elevation of ‘the cult of domesticity’ (O’Donovan, 1985), men also had to be disciplined in order to achieve the goal of ‘“respectable” familial masculinity’ now required to ensure the prosperity of the new social, economic and political order – industrial capitalism (Collier, 1995a: 218; Clark, 2000: 27). Youth organisations such as the Boys Brigade and Baden-Powell’s scouting movement, helped to communicate a new standard of middle-class masculinity which emphasised the qualities ‘of directness, honesty,

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decency, duty and honour’ (Warren, 1987: 200; Springhall, 1987). Thus, while bravery and courage remained important qualities within this new construction of ‘manliness’, respectable masculinity could not be achieved through brute force; on the contrary, the nineteenth century brand of masculinity now emphasised that ‘a man is not the less strong for being gentle’ (Springhall, 1987: 66). Through self-discipline and selfcontrol, as well as marriage and work, this new man of ‘reason’ and ‘rationality’ could achieve respectable masculinity, a process which gave him a new status as the sole provider of the ‘family wage’ (Hammerton, 1992; Collier, 1995a; Clark, 2000). Connell’s concept of hegemonic masculinity highlights the complexities involved in the social construction of masculinity: The public face of hegemonic masculinity is not necessarily what powerful men are but what sustains their power and what large numbers of men are motivated to support (1987: 185). In other words, as long as hegemonic masculinity is accepted as the dominant cultural form of masculinity to which all men should aspire, deviations in actual behaviour is relatively unthreatening to the social order. This is a key qualification because it demonstrates the emphasis on maintaining the interests of hegemonic masculinity rather than the interests of men, which in turn challenges simplistic explanations with regard to both the social order and the criminal justice system within that order, as being based on ‘a rigid system of male domination’ (Smart, 1995: 130). It therefore also challenges the traditional topdown application of legal control mechanisms by demonstrating that the law does not operate solely in the interests of men, just as men do not operate solely in the interests of each other. A similar argument can be made about Connell’s concept of ‘emphasised femininity’ which he defines as the subordination of women to men, ‘oriented to accommodating the interests and desires of men’ (1987: 183). In particular, compliance as one aspect of emphasised femininity, ‘is given most cultural and ideological support …’ (Connell, 1987: 187). As with hegemonic masculinity, women’s actual behaviour may not necessarily match this key characteristic of emphasised femininity as long as the performance of it is sustained: ‘This kind of femininity is performed, and performed especially to men’ (Connell, 1987: 188). Ada’s performance of emphasised femininity was brimming with compliance as she constructed herself as the long-suffering, put-upon,

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self-sacrificing wife, who had lied in court – despite this being to the detriment of her defence – for the sole purpose of protecting the good name of her faithless husband: Had I only made a full statement of my husband’s associations with other women in the first days of the case, I have been told I would have been discharged altogether … But I did not want to. My only thought at that time was to shield Don’s name from being besmirched by gossiping. Only a few weeks ago I painted all the inside of the caravan and put in new fittings, so that Don and I could spend our summer holidays in it. No one can say I did not try to make our lives happy. Everything I had or earned I gave up to help him in his career. No sacrifice was too great.31 Meanwhile, Donald was constructed as having failed to comply with the two key components of hegemonic masculinity – those of marriage and work. While no evidence was presented in court that he had ever been physically abusive towards Ada, Mr Griffiths, for the defence, claimed that: As far back as 1936 he would not work, so she had to get a job as a cook-general and while working to keep both of them she found that he was associated with professional dance partners at Hammersmith. When she left him he thrashed her.32 Throughout the following years Ada ‘had stuck to him and had had to leave him on two occasions because of his ill-treatment’.33 Despite this level of loyalty, Ada claimed that immediately prior to the shooting Donald announced: ‘I have decided to walk out on you at last. This is final. This time I am going.’34 Hammerton has argued that since the nineteenth century, the manliness of husbands has increasingly been tested by their marital conduct and breadwinning capacities (1992: 3). If their ‘failure to maintain their wives adequately’ was combined with ‘physical assault’, they risked being regarded as ‘monstrous … unmanly and cruel’ (1992: 48). Ada’s, and indeed the court’s ability, to construct Donald through the discourses of philanderer, wife-beater and poor provider ensured that it was not only Ada’s femininity, but also Donald’s masculinity which was on trial in the courtroom. Ada’s testimony presented above, indicated that he had broken every one of the qualities of ‘respectable manliness – directness, honesty, decency, duty and honour’. His failure to live up

Anette Ballinger 49

to respectable masculinity therefore played a significant part in constructing him as a ‘cruel’, ‘brutal’ and dishonourable man35 who preyed on ‘lonely women’, despite his marital status, thereby humiliating Ada still further.36 Meanwhile, Ada’s ability to construct herself as not only the longsuffering, compliant wife who had to write to these lonely women telling them: ‘This man is my husband’,37 but also as a stereotypical hysterical female who was lacking in both agency and intent as far as her crime ‘against a man who had been a brute to her for years’38 was concerned, helped to ensure that the prosecutor, defence and judge all displayed a deep measure of sympathy towards her. In the following section I elaborate upon the second theme to be considered in the ‘reconceptualising’ of social control – that of agency and its relationship to the social construction of femininity and masculinity, the state and the social order.

Women’s violence, agency and rationality Since the arrival of second-wave feminism several authors have analysed the labelling of female murderers as ‘mad’, ‘bad’ or ‘tragic victim’ – more ‘sinned against than sinning’ – ‘to be pitied rather than punished’ (Ballinger, 2005: 70; see also Allen, 1987; Ballinger, 1996, 2000; Morrissey, 2003; Lloyd, 1995; Wilczynski, 1991; Worrall, 1990). Feminists have also investigated the impact that surrounding discourses of femininity have in determining which of these labels are applied to individual female criminals. For example, those who adhere to traditional constructions of emphasised femininity are likely to be perceived through the ‘victim’ label. The utilisation of such labels can be understood as a strategy for reducing the threat that female agency presents when women kill. As Kennedy has explained: Women are still the glue that cements the family unit, providing cohesion and continuity, and we do not like to admit to the possibility that there is a potential for crime in Everywoman (1993: 23). The victim stereotype has been particularly noteworthy in analysing the predicament of battered women who eventually retaliate by killing their abuser and has undoubtedly benefited individual women as they make their way through the criminal justice system (Allen, 1987; Ballinger, 1996, 2005, 2007). Yet such benefits have been to the detriment of women as a category since the over-emphasis on women as helpless,

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passive victims, whose actions are unintentional, serves to reinforce existing stereotypical beliefs about female conduct and behaviour – that women are irrational and over-emotional, rather than responsible agents. In short, emphasising women’s helplessness and victimisation reinforces their inequality and lack of full citizenship (Ballinger, 2007: 475; Morrissey, 2003: 25), and hence stands in direct conflict with the feminist struggle for gender equality. This construction of women as passive non-agentic beings also reinforces the ‘top-down’ model of social control which, as noted above, over-emphasises the motivations of the controllers whilst simultaneously marginalising the voices of the controlled (Morrison, 2005: 69). It thus fails to recognise the complexities involved in women’s oppression. For example, as far as the criminal justice system is concerned, it fails ‘to recognise that the main sources of women’s oppression do not originate within the criminal system per se but “arise from prevailing material conditions, cultural values, customs and social practices”’ (Smart and Smart cited in Morrison, 2005: 69). Thus, feminist theorists have rejected a simplistic equation of social control with repression: Rather it [social control] came to signify those ongoing processes by which femininity was constructed, in language, sexual and social relationships and law … Feminism’s role in the imputation process [of social control] and its consequences, namely the construction of new social problems, was usually acknowledged, and responsibility was taken for the ambivalent results this might lead to. Thus feminists tended to view themselves, and women in general, as actors, rather than merely acted upon, and very early on rid themselves of the oppression paradigm … (Pitch, 1995: 89). The Ada Allen case demonstrates both the limitations of traditional ‘top-down’ models of social control as well as how those limitations can be remedied through a more complex gender-specific ‘reconceptualising’ of the concept. Morrissey has argued that ‘many portrayals of women who kill depict them as so profoundly victimised that it is difficult to regard them as ever having engaged in an intentional act in their lives’ (2003: 25). Ada can be understood as falling into that category because, despite the conflicting evidence presented above as to whether the shooting had been intentional or accidental, she was able to construct herself as an ‘excellent’ but ‘wronged’ wife through the discourses of ‘emphasised femininity’. Moreover, despite there being no independent evidence to support Ada’s claim that she was a bat-

Anette Ballinger 51

tered wife, she was treated as such. Thus, Ada’s ability to gain the sympathy of the court through discourses of emphasised femininity, rather than actual evidence, can be seen as an example of how social control should be understood as ‘an ongoing process by which femininity is constructed’ rather than as ‘repression’ (Pitch, 1995: 89). That is to say, this feminist analysis can account for the fact that, within a framework which regards women as actors and agents, social control mechanisms may achieve a positive outcome for individual women like Ada – thus illustrating Pitch’s point that outcomes may be ‘ambivalent’. In short, such an analysis has avoided over-generalising women’s oppression, and has instead proved capable of taking into account the ‘multiple determinants’ that individuals utilise to ‘act upon themselves and order their own lives in numerous and variable ways’ as discussed above (McNay, 1992: 65). In turn, the process of creating such ambivalent outcomes can be linked to Morrison’s point above, that it is not the criminal justice system per se but the prevailing cultural values, customs and social practices which create women’s oppression. For example, Kennedy notes: Judges are not aware that they allow preconceived ideas about ‘good’ women to affect their decision-making. … However, hidden expectations creep in unawares … The compulsion to make women fulfil accepted criteria of decent womanhood is a great temptation to lawyers, who in colluding with it succumb to a paternalism which effectively marginalises women (1993: 70, 75). In Ada’s case, this compulsion was noteworthy for uniting judge, jury, defence and prosecution in constructing her as a ‘tragic victim’, ‘more sinned against than sinning’. Yet, as noted above, the ‘leniency’ following on from this construction of individual women like Ada, comes at a heavy price – the maintenance of the heteropatriarchal social order within which women remain subordinate to men, for it is only through playing the role of the subordinate female, ruled by emotions and lacking in agency and rationality that sympathy can be sustained. Referring to the case of Sarah Tisdall,39 Kennedy notes how she ‘was described as ‘misguided’ and a ‘silly girl’ during her trial (1993: 75), strongly mirroring Judge Humphrys’ statement in Ada’s case when he chastised her for telling ‘silly stories’: … [if] ‘you had been wise enough and honest enough to have told [the jury] …all we know now about your married life … they might have acquitted you altogether.’ She had, he said, done herself no

52 Punishment and Control in Historical Perspective

good by telling the ‘silly story’ of having no intention to shoot and should have told the jury the truth.40 In short, an extremely light sentence may be secured through the infantilisation of the female defendant, even when she has admitted her intention to shoot her husband, as implied by the judge’s comments above. While at first glance, this suggests a large measure of sympathy and leniency towards a defendant whom the judge considered to ‘have been punished enough already’,41 ultimately, this can be understood as a highly conservative strategy because it reinforces both the unequal power relationship within marriage and the gendered social order more generally (Morrissey, 2003: 20). This is therefore a strategy which does nothing to further women’s equality as citizens (Morrissey, 2003: 95), nor secure their emancipation, but, on the contrary, it secures the production and re-production of the gendered subject which in turn facilitates the maintenance of the social order, whilst simultaneously preventing new discourses being created through which the agency of female murderers can be articulated without falling into either the mad/bad or victim categories.

Conclusion In this chapter I have highlighted the important contribution that early feminist work made to our understanding of how women are socially controlled through discourses around appropriate femininity, and how that socially constructed femininity may impact on the final outcome of trials of female defendants. In doing so, I have argued for a ‘reconceptualising’ of ‘social control’ by incorporating two added dimensions which were lacking in traditional top-down uses of the concept – those of masculinity and female agency. Adding these two dimensions has allowed for an analysis which does not regard the concept solely in negative terms, but instead can account for ‘ambivalent outcomes’ as illustrated by the Ada Allen case. In the case-study I have also responded to the critique that traditional social control over-emphasises the perspectives of the controllers at the expense of the controlled by stressing that heteropatriarchy is not a monolithic immutable force. On the contrary, it allows for the existence of ‘sacrificial men’ such as Donald, who, by failing to measure up to the qualities of ‘respectable masculinity’, paid the price in terms of loss of reputation, and who could thus be ‘sacrificed’ for the greater good of preserving the gendered social order (Ballinger, 2007: 477).

Anette Ballinger 53

Conversely, the purpose of this expanded analysis has also been to demonstrate the validity of preserving women as a category whilst simultaneously avoiding over-simplified explanations of marital relations which centres on ‘all men’s potential to abuse power’ and all women’s potential to become victimised (Segal, 1990: 260). In short, the analysis of women as a category may be enhanced when examined within the context of masculinity and agency. The Ada Allen casestudy has demonstrated how ‘representations of the murderess as victim … function to deny her responsibility, culpability, agency, and often her rationality as well’ (Morrissey, 2003: 25). Yet that representation would not have had such a powerful impact had Ada not been able to construct herself through additional discourses of emphasised femininity. In turn, that emphasised femininity would not have such a powerful impact, had it not been constructed against a disreputable masculinity – a discourse which united court personnel in the discrediting of Donald. Connell has argued that ‘the state is indeed the main organiser of the power relations of gender’, but not in a simplistic or conspiratorial way which leads to ‘futile searches for Patriarch Headquarters’ (1996: 148, 146). Instead, ‘patriarchy is embedded in procedure, in the state’s way of functioning … It locates sexual politics in the realm of social action, where it belongs, avoiding the speculative reductionism that would explain state action as an emanation of the inner nature of males’ (1996: 146). To this we can add that the ‘reconceptualised’ concept of social control proposed here also does not operate in a simplistic or conspiratorial way. On the contrary, a feminist analysis of the concept which incorporates the added dimensions of masculinity and agency has enhanced the development of an analysis which is robust and rigorous enough to encompass those cases of female violence which do not fit easily into pre-existing stereotypical categories of femininity, but which feminism cannot afford to ignore if it is to continue to engage with notions of social control. This analysis therefore avoids oversimplifying women’s subordination by taking into account the multiple factors which contextualise their lives as well as the numerous ways in which individual women order their lives, without losing sight of women as a category and their position within the wider maledominated social order. Moreover, it is an analysis which is able to recognise women’s subordinate place within that social order without arguing on the same terrain as heteropatriarchal traditionalists who have perpetuated sexist myths regarding women’s ‘nature’ – that they are incapable of experiencing the full range of human emotions, and

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without relying on more contemporary victim stereotypes which undermine women’s ability to respond to their emotions as rational agents: Such an approach acknowledges the reality of power without presenting women as eternal victim and insists on the agency of the oppressed without denying the reality of oppression (Connell, 1987: 149). Although written over two decades ago, Connell’s words remain as relevant to a twenty-first century feminist ‘reconceptualising’ of social control as they were to twentieth century authors interested in developing new legal narratives which focus on female agency within the wider context of gendered oppression in a heteropatriarchal social order. Notes * The research for this chapter was funded by the Nuffield Foundation. I am grateful to the Foundation for its support, both financially and emotionally. I am further indebted to the staff in the National Archives, Kew, for their professional assistance. A big thank you also to Helen Johnston for her patience and to Joe Sim for his support and encouragement. 1 NA, DPP 2/1377: 23–4. 2 DPP 2/1377: 24. 3 ibid., 26. 4 ibid., 25, 26, 29. 5 ibid., 16, 17. 6 ibid., 18. 7 ibid., 21. 8 ibid., 9, 10. 9 ibid., 12, 13. 10 Birmingham Gazette, 20 July 1945. 11 Birmingham Gazette, 20 July 1945; Telegraph, 20 July 1945. 12 cited in Birmingham Gazette, 20 July 1945. 13 cited in Birmingham Gazette, 20 July 1945; Daily Herald, 20 July 1945. 14 cited in Birmingham Gazette, 20 July 1945. 15 Birmingham Gazette, 20 July 1945. 16 DPP 2/1377: 11, 14, 6. 17 ibid., 2. 18 ibid., 3. 19 ibid., 8. 20 ibid., 12. 21 ibid., 5, 6. 22 Daily Herald, 20 July 1945. 23 DPP 2/1377. 24 Daily Herald, 20 July 1945. 25 DPP 2/1377.

Anette Ballinger 55 26 27 28 29 30 31 32 33 34 35 36 37 38 39

ibid. ibid. ibid. NA, HO 144/22230; DPP 2/1377. Daily Herald, 20 July 1945. Daily Mirror, 21 July 1945. HO144/22230. Daily Herald, 20 July 1945. Daily Express, 20 June 1945. Manchester Guardian, 20 July 1945; Daily Express, 20 July 1945. Daily Express, 20 July 1945. Daily Express, 20 July 1945. Birmingham Post, 20 July 1945. Sarah Tisdall was charged in 1984 under the Official Secrets Act for leaking ‘information about the deployment of American missiles in the UK’ (Kennedy, 1993: 75). 40 Birmingham Gazette, 20 July 1945. 41 Daily Herald, 20 July 1945.

3 An Honourable Regime of Truth? Foucault, Psychiatry and English Criminal Justice Tony Ward*

Psychiatry has played an important part in the history of punishment and social control over the last two centuries. It has contributed to shaping particular practices of punishment (Sim, 1990), to the development of ostensibly non-punitive forms of social control (Scull, 1993), and to the discourses and practices by which the boundary between punitive and non-punitive institutions, and penally responsible and non-responsible subjects, is defined. This chapter focuses on the last of those three roles. Unquestionably the most influential historian of the interface between medicine and punishment is Michel Foucault. The work of Foucault most directly relevant to the concerns of this chapter is Abnormal, published in English in 2003, and comprising transcripts of a series of lectures delivered at the Collège de France in 1975, around the time that Discipline and Punish (Foucault, 1977) was published. Some of the lectures prefigure themes of the History of Sexuality (Foucault, 1990) but the main subject of the first six lectures is the development of psychiatric expert evidence in French criminal trials in the nineteenth and twentieth centuries. On reading the opening pages of Abnormal one is immediately struck by their uncharacteristically clear normative purpose. Foucault launches a polemical attack on medico-legal expertise as it operated in the France of his day, while carefully explaining that this is not a general assault on psychiatry or law: …it would be absolutely unjust to judge modern law (or, at any rate, law as it functioned at the beginning of the nineteenth century) by such a practice, and it would be unjust to assess medical knowledge 56

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and even psychiatric knowledge in the light of this practice (Foucault, 2003: 41). The words in parenthesis are significant. Foucault is highly critical of French criminal law for departing from the principles of the enlightenment reformers. In particular, he castigates it for distorting the principle of intime conviction, under which evidence was to be assessed not according to legal rules which stipulate quantitative measures of proof, but rather according to its persuasive effect on the conscience of the individual judge or juror (Taruffo, 2003: 667). For Foucault, this principle replaced ‘the arithmetico-scholastic and ridiculous regime of classical proof’ (discussed in Foucault, 1977: 35–42) with a ‘common, honourable and anonymous regime of truth for a supposedly universal human subject’ (Foucault, 2003: 8). This ‘rule of common truth’ (Foucault, 1977: 96) was essential to demonstrate to the public the consistent and predictable link between crime and punishment that the enlightenment reformers sought to achieve. The French courts, according to Foucault (2003), progressively subverted the rule by the use of ‘extenuating circumstances’ to convict people whose guilt was less than certain and, more importantly for our purposes, by according some expert evidence ‘an effect of power, a demonstrative value, greater than other evidence and independently of its own rational structure’ (Foucault, 2003: 10). Again, it is important to notice how narrowly focused is Foucault’s criticism. He is not complaining about the use of scientific evidence in general; indeed he sees empirical scientific enquiry as instantiating the ‘rule of common truth’ (1977: 97) and implicitly accepts that some such evidence has a ‘rational structure’ capable of producing ‘profound conviction’ (though he would deny that the rationality it appeals to is in any way natural or innate: Foucault, 2002a). Foucault’s target is what American lawyers often refer to as ‘junk science’ (cf. Slobogin, 1998): ‘statements…having the status of true discourses with considerable judicial effects…[despite] being foreign to all, even the most elementary, rules for the formation of scientific discourse’ (Foucault, 2003: 11). In the unlikely event that an English judge had been in Foucault’s audience, he would probably have nodded in agreement at the speaker’s mockery of French forensic psychiatry. The lectures, after all, are roughly contemporaneous with the Court of Appeal’s decision in R v Turner,1 which set strict limits to the use of psychiatric evidence in English criminal trials. Foucault, however, does not explain the problem of ‘grotesque’ medico-legal evidence in terms of any peculiarities of French legal

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culture or procedure, but rather explains it as the result of an interplay between certain very general features of modern law and psychiatry. Given the nature of Foucault’s explanation, it is fair to ask how far it applies to England. In fact, English law and psychiatry in the nineteenth century did have the general features that Foucault described, and yet, as this chapter will seek to show, the interplay between them worked out quite differently.

The rule of common truth There is little doubt that Foucault exaggerated the abruptness of the change in methods of proof in France and other civil-law jurisdictions. Langbein (1977) has shown that sixteenth and seventeenth century courts were often able to evade the formal requirements of the RomanCanon law of proof and impose non-capital punishments on the basis of a free judicial evaluation of the evidence. Decision-making based on what French judges call intime conviction seems to have arrived earlier and more gradually than he supposed. When transposed to England the idea of a ‘rule of common truth’, together with Foucault’s (2002a) suggestion that the development of ‘juridical forms’ contributes to the formation of new subjects (in both senses) of knowledge, nevertheless captures an important feature of the development of criminal justice between the seventeenth and the nineteenth centuries. As Barbara Shapiro (1991, 2000) has argued, trial by jury helped institutionalise the idea that men of the middling sort could arrive at ‘moral certainty’ about questions of fact (‘fact’ itself being originally a legal concept) on the basis of evidence and argument, and thus helped develop a common epistemological foundation for legal, scientific and other forms of inquiry. The idea of ‘moral certainty’, or the ‘satisfied conscience’ of the juror, seems to correspond quite closely to the historic meaning of intime conviction (Taruffo, 2003). In his study of the nineteenth-century adversarial system, David Cairns argues that Foucault’s ‘rule’ ‘describes a specific instance of the need for harmony of the law and public feeling recognised by early nineteenth century reformers.… The spectator must leave court in no possible doubt of the correctness of the verdict’, and adversarial procedure was the means the English courts developed to achieve this (Cairns, 1998: 94). The way English criminal procedure developed on the basis of private prosecutions, with adversarial procedure as a check against abuses, and continued to develop this adversarial procedure as prosecutions were progressively taken over to the state, was in marked

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contrast to the development of the highly centralised inquisitorial system in France (Langbein, 2003; Hodgson, 2005; Vogler, 2005). One important consequence of the way English procedure developed was the marginalisation of the accused, to the point where an early nineteenth-century French observer remarked that ‘his hat stuck on a pole might without inconvenience be his substitute at the trial’ (quoted by Langbein, 2003: 6). In contrast, French defendants were, and still are, expected to play an active part in the trial (Hodgson, 2005) and inquiries into their character are far more central to the trial than in England (Field, 2006). As Harris (1994) argues, the Napoleonic codes created a tension between the rigid tariff of sentences, fitted to the offence rather than the individual, and the thorough investigation of individual life-histories and motives encouraged by inquisitorial procedure. The nature of French inquisitorialism helps explain Foucault’s observation that, in the criminal courts of his own day, when the accused refused to explain his conduct, ‘the machinery jams, the gears seize up. Why? …The accused evades a question that is essential in the eyes of a modern tribunal, but which would have had a strange ring to it 150 years ago: “Who are you?”’ (Foucault, 2002b: 177). It would hardly have such a dramatic effect in a common-law trial.2 Perhaps the clearest statement of the ‘rule of common truth’ in English jurisprudence is that of the pre-eminent Victorian theorist of criminal law and evidence, J. F. Stephen. He defended trial by jury as upholding the principle ‘that no one shall be punished unless his guilt be proved on grounds which the bulk of the nation at large can understand’ (Stephen, 1863: 213). There is a curious parallel between Stephen’s view of expert evidence and Foucault’s. Stephen thought that juries, and laypeople in general, necessarily accepted many propositions on the basis of ‘mere authority’, because such acceptance was a practical necessity ‘in the transaction of the common affairs of life, however momentous may be the conclusions which rest upon them’ (1863: 210). Similarly, Foucault maintained that courts and other institutions routinely accepted statements as true merely on the basis of the status of their maker, even in matters of life and death, because this was practical necessity for the working of the machinery of power. The authoritarian Stephen approved what the libertarian Foucault deplored; but his argument was put forward mainly with toxicology in mind and did not extend to psychiatry. Psychiatry, however scientific it might become, could never provide authoritative answers to the law’s questions about the state of an individual’s mind at the moment of a particular act (Stephen, 1863: 87–8).

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Insanity, deterrence and delinquency Psychiatric evidence, according to Foucault, functions within modern penal discourse through the ‘doubling’ of offenders and offences. The theme of the double ‘always haunted Foucault’ (Deleuze, 1986: 97), and can be understood in at least two senses in the context of crime. One is the formulation of two types of statement which are similar on the surface but function within different discourses. The legal statements by which a series of offences is attributed to a particular legal subject are ‘doubled’ by medical statements identifying the same acts as manifestations of a pathological trait. These overlapping sets of statements provide a ‘switch point’ between legal and medical discourses (Foucault, 2003: 16–18, 33). In another sense, the human subject is ‘doubled’ by the human being as an object of positive knowledge (Foucault, 1970: Ch. 9): the offender as author of his crimes is doubled by the delinquent, the bearer of the pathological trait of criminality. Such doubling is necessitated, according to Foucault, by a fundamental paradox in the classical theory of deterrence. Deterrent punishment is supposed to provide a sufficient incentive to induce a rational person to refrain from offending. If punishment is correctly calibrated but some people nevertheless break the law, then either those people have unusually strong motives or they are irrational. Thus, although the legal codes of the enlightenment reformers (and the rationalised English common law of the nineteenth century: Norrie, 2001) addressed themselves to a rational, calculating, legal subject, those who were punished could not be adequately conceived as such subjects. ‘Delinquents’, as Bentham put it, must be ‘a peculiar race of beings, who require unremitted inspection. Their weakness consists in yielding to the temptations of the passing moment. Their minds are weak and disordered’ (quoted by Wiener, 1995: 254). At first, this paradox only presented an embarrassment to the courts in the rare cases of homicidal ‘monsters’ whose acts appeared motiveless or patently irrational. (As an English example, Foucault’s History of Madness (2006: 643n.) mentions the trial of Bowler for attempted murder in 1812, apparently the first time the concept of ‘delusion’ was used by a medical witness: Eigen 1995: 136–40.) In time, according to Foucault, the medico-legal knowledge that emerged in these cases was extended to a much wider range of ‘abnormal’ delinquents. Wiener (1990) argues that English legal culture in the early Victorian period resolved the problem of the irrationality of everyday delin-

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quency to its own satisfaction by assuming that although most criminals were not rational, calculating subjects, the best way to teach them and others to become such subjects was to treat them as if they were. Even when faced with seemingly irrational homicides, some judges held fast to the logic of deterrence: The homicidal maniac has a morbid craving for taking life. The not doing so is painful to him, the doing so pleasurable. We may wonder that it is so, but so it is…. Why should persons who commit offences under the influence of their vicious desires or appetites – or ‘manias’, if that is the right word – not be punished, i.e. not be threatened with punishment? … Should the law not direct its threat against one who stands so much in need of it, who, unless fortified by it, is so likely to do wrong? (Baron Bramwell, 1872, quoted by Fairfield, 1898: 43–4) The insanity defence, as formulated by the judges in 1843,3 removed the threat of punishment only from those who were so insane that they could not understand that they were doing what the law declared punishable – those who did not know what they were doing or did not know it was (legally) wrong. The medical argument that insane criminals were not simply acting on vicious desires but rather were physically incapable of controlling their conduct (Smith, 1981) made no headway at all at the level of legal doctrine; the so-called McNaughton (or M’Naghten) rules are still law today (see Mackay, 1995). The restrictive wording of the legal definition of insanity, as compared with the undefined concept of démence in the Code Napoleon (Art. 64: ‘there is neither crime nor offence [délit] where the accused is in a state of insanity [démence] at the time of his act’), had significant effects in limiting expert authority. According to Robert Nye, ‘It was the very generality of the [Napoleonic] code that called forth the expert medical witness and made him a partner in the judicial process,’ (Nye, 1984: 30, 128). By contrast, it was a perception on the part of the public, and more particularly the Law Lords, that the judges at the trial of Daniel McNaughton (a political assassin acting from seemingly irrational motives) had been too willing to allow the medical witnesses to step ‘from the witness-box to the jury-box’ that led the judges to formulate their restrictive definition of insanity.4 The McNaughton rules made the crucial issue the state of the accused’s mind at the precise moment of the act, which in the nature of things was something about which the medical witnesses could not

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give direct testimony.5 This produced one of two results, depending on how strictly the judge interpreted the law of evidence. Either the medical witnesses were confined to speaking about events before and after the act – insane relatives, previous fits or eccentric conduct, etc. – drawing a conclusion that the accused was or was not of sound mind before and after the crime, and leaving the jury to draw its own conclusions as to how someone with that history might have come to act as he did;6 or, as was the usual practice in the late nineteenth and early twentieth centuries, the witnesses gave the same kind of evidence but were allowed to explain to the jury how they inferred from it that the accused did or did not fit the legal definition of insanity (see Ward, 1997, 2001, for examples). Such evidence located the criminal act in a series of acts which resembled in it in some way; but rather than ‘a para-pathological series that is close to being an illness, but an illness that is not an illness since it is a moral fault’ (Foucault, 2003: 20), it constructed a pathological series that absolved the actor from moral fault. ‘The vicious act or crime is not itself proof of insanity; it must, in order to establish moral insanity,7 be traced from disease through a proper chain of symptoms, just as the acts of a sane man are deduced from his motives; and the evidence of disease must be found in the entire history of the case’ (Maudsley, 1874: 173). Medical evidence intended to show the defendant as sane and responsible usually relied not on any series of deviant acts but simply on an absence of signs of insanity while remanded in prison, under observation by the prison medical officer or a visiting psychiatrist. As we shall see, the ‘delinquent’ whose offences showed a pattern of character defects or ‘weak-mindedness’ falling short of insanity was certainly not unknown to medical discourse. But though occasionally evidence of weak-mindedness was given in relation to an insanity defence, it was usually more as an appeal for mercy, or a limited concession to the defence, than as a medical ground for responsibility or irresponsibility.8 The trial of Lucy Samways for drowning her three-year old illegitimate child (reported by Mercier, 1904: 591–3) provides a striking exception to this generalisation, but one which could be said to prove the rule. A medical officer of health (not a mental specialist) called Samways ‘a moral degenerate….She would think no more of putting her child in the water than of eating her dinner’. Another doctor could find no ‘mark of mental disease’ but the ‘history of her life’ and ‘moral character’ (the fact of having an illegitimate child) pointed to her being the kind of person who would act ‘automatically’, without knowing what

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she was doing. The judge, however, made it very clear that the jury should take no notice of this evidence, and the only medical witness ‘worthy of attention’ was the asylum superintendent who said that the prisoner showed defects of memory and ‘did not morally appreciate in its true sense the nature and quality of the act’ (thus, typically, bringing her almost, but not quite, within the letter of the McNaughton rules). The jury was quick to bring in a verdict of guilty but insane, which reflected the generally merciful attitude of juries to poor women who killed their illegitimate children (Ward, 1998). There were also cases where evidence that was intended to demonstrate insanity was probably taken by the jury to demonstrate only depravity (see Smith, 1981). Two well known examples were the murder trials of William Dove in 1856 and Ronald True in 1922. In his recent study of the Dove case, Owen Davies (2005: 127) argues that the whole defence case was constructed to fit James Cowles Prichard’s profile of moral insanity, using evidence of his unconventional farming methods, belief in the supernatural, volatile behaviour and emotional cruelty to the wife he eventually poisoned. The judge, Baron Bramwell, told the jury that ‘none of the instances of strange conduct, adduced when he was a boy, [were] evidence of insanity, more than might be found in a perverse, ill-conducted boy’, and that the jury were as capable as the medical men of judging the facts on which the medical evidence was founded.9 Similarly, the editor of the published transcript of Ronald True’s trial was almost certainly right when he remarked that ‘the facts which to the medical men were so eloquent of profound medical disorder would convey to the jury only the picture of a depraved, callous monster who, being in need of ready money, thought to raise a few pounds by robbing a defenceless woman’ (Carswell, 1925: 38). Between these two cases there was, to be sure, a marked increase in the receptivity of judges and juries to psychiatric evidence. By the 1890s, the change in mood was apparent to both legal and medical commentators. The lunacy law expert A. Wood Renton (1890: 317–18) called it a ‘silent revolution…every barrister who has gone on circuit knows that the “rules in MacNaghten’s [sic] case” are, avowedly, manipulated by judges and, if need be, defied by juries.’ The Medico-Psychological Association (1896), the alienists’ professional body, abandoned a campaign for reform of the insanity defence on the grounds that the relaxed interpretation of the rules made it unnecessary, and any proposal for change would alarm public opinion.10 The percentage of those charged with murder who were found either unfit to plead or legally insane climbed steadily from 14.6% in the decade 1861–70 to 34.3% from 1901–10 (Chadwick, 1992: 399).

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The nature of medical evidence and its reception in turn-of-thecentury English murder trials was, however, very different from Nye’s description of France in the same period, with judges and juries so baffled by ‘esoteric expert testimony’ that ‘magistrates out of desperation importuned the justice minister to ask psychiatrists to pronounce directly on the question of responsibility’ (Nye, 1984: 251). The minister’s response was a circular requiring prosecutors to ask experts to what extent any ‘mental anomalies’ not amounting to démence under Article 64 of the penal code affected the defendant’s responsibility (ibid.: 248). It was to such questions that the experts (after initially protesting that responsibility was not a medical question: ibid.: 251–2) responded with the ‘grotesque’ evidence castigated by Foucault. British justice,11 by contrast, liked to congratulate itself on its robust common sense (see Ward, 1997, 1998). A Times leader, commenting on a long discussion of the insanity defence in its letters pages, summed up the attitude well: It is [the] adaptation of doctrine to the totality of the impression made not only by the evidence, but by a thousand details of appearance and demeanour, which is the sphere of that common-sense, the application of which to responsibility fills some medical minds with scorn. But that common-sense, instructed and enlightened by judicial processes, is the main element of our whole system of jurisprudence, and is every day called upon to decide the state of mind in which sane people did particular acts. If medical men wish to convert lawyers and the laity to their views, they would do well to give up the idea of over-riding this great moderating factor by expert authority.12 As Foucault (2003: 161) notes in the French context, these claims to authority (best articulated in England by Maudsley, 1874) rested on a view of madness as a biological condition akin to epilepsy and characterised by various forms of involuntary conduct (see Young, 1970; Clark, 1982; Oppenheim, 1991). Psychiatry allied itself to biological science and in particular to degeneration theory (see Pick, 1996) while finding itself isolated from the medical mainstream (Oppenheim, 1991; Scull, 1993). As in France (Nye, 1984; Harris, 1989) psychiatry was able in this way to cultivate a reassuringly scientific and socially conservative image. As Wiener (1990) argues, it also reflected a broader cultural mood which was more inclined to see weakness rather than wilfulness in the misconduct of the lower classes. In the trials of this period,

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however, one gets no sense whatever of judges and juries being overwhelmed by scientific theory and jargon. In some cases, quite flimsy and tentative evidence that the accused might have been suffering from some form of epilepsy was sufficient in the light of the prosecution’s failure to show a plausible motive (for a good example, see Smith, 1901). In others, even unanimous evidence from eminent witnesses would not secure an acquittal where the accused did seem to have intelligible motives.13 Such individuals would be promptly certified insane after the trial and sent to a criminal lunatic asylum instead of the gallows (Chadwick, 1992). But while in the administrative processes of punishment expert opinion was often decisive, in the public ritual of the trial the ‘rule of common truth’ was staunchly upheld.14

Mental deficiency By the 1870s, in what can reasonably be considered some of the earliest criminological texts (Davie, 2005), we find the observation of prisoners beginning to produce a form of medical knowledge of the lesser forms of delinquency. Nicolson (1874) proposed a categorisation of prisoners based on their crimes and response to discipline. He summed up the ‘habitual or thorough criminal’ as ‘[m]ostly unintelligent, wilful and impulsive. Moral depravity and grossness, with low selfish cunning. (Criminal minded.)’. The ‘weak-minded criminal’, on the other hand, showed ‘[e]vidences of a mind morbidly defective or disturbed, requiring the relaxation of prison discipline, but not warranting or rendering expedient a certificate of lunacy’ (Nicolson, 1874: 168). These ‘evidences’ were nothing but his repeated failures to be deterred by prison discipline: ‘No prisoner whose mind is fairly regulated will lay himself open to such punishment by resisting as will be likely to affect him seriously’ (ibid.: 172). Thus prison discipline could double as ‘a test of mind’ (ibid.: 167). The problem with this kind of reasoning was that the prisoner who repeatedly defied discipline might be just the sort of prisoner who most needed it: the good-for-nothing scoundrel… whose insubordinate and violent tendencies… are equalled only by his utter callousness in the matter of punishment. To hold that all such are irresponsible and not punishable would be a dangerous doctrine, and would simply provoke more numerous assaults on the part of criminals, with the view of

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obtaining the specially mild treatment accorded to the weakminded class… (ibid.: 172–3) Such considerations, as Davie (2005) argues, led prison-based criminologists to be cautious in confining any suggestion of a lack of responsibility to a relatively small group of weak-minded prisoners. They also made prison administrators unwilling to allow medical officers to determine prisoners’ responsibility for breaches of discipline.15 Nicolson’s ‘weak-minded’ prisoner was weak in self-control. In the evidence of prison medical officers to the Royal Commission on the Care and Control of the Feeble-Minded, which sat from 1904–8, weakmindedness began to be equated with low intelligence (Watson, 1994), but was still identified by prisoners’ failure to appreciate the seriousness of their crimes and by their conduct in prison: The committal of semi-impulsive acts; assaults; destruction of furniture, clothing, etc., breaking of windows, self-mutilation and the use of threatening, abusive and obscene language for trivial and quite inadequate causes; extreme obstinacy, idleness and laziness; sullen or defiant moods alternating with periods of cheerfulness and submission; untidy, dirty or filthy habits; tendencies to threaten suicide or make feigned attempts at suicide.16 Criminal records collated in prisons formed ‘para-pathological series’ by which not only weak-minded individuals but whole families could be identified:17 ‘These weak-minded prisoners… are mischievous and predatory and propagate their species thus doing incomparable evil’.18 The administrative and legal dilemmas posed by these offenders were explained to the Royal Commission (1908) by Sir Charles Troup, assistant under-secretary at the Home Office. The proper verdict in such cases would be one of ‘guilty but not fully responsible and in need of care and restraint’, but it was impossible to ask a jury to return such a verdict because it would require consideration of the prisoner’s previous convictions, which were excluded from evidence on the ground that they were prejudicial.19 (The Commission was informed that the judges were unanimously opposed to juries deciding this question.)20 The Home Office’s powers over criminal lunatics depended on juries ‘finding them insane on evidence which, strictly speaking, does not quite amount to that’, but Troup nevertheless felt that the question of insanity should be left to a jury, not to ‘a body of experts’; and the Home Office was very reluctant to transfer accused persons to asylums

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without trial.21 (At one time some 40 prisoners a year had been dealt with in this way, but the practice was changed in the light of judicial criticism.)22 The Home Office had also urged on magistrates the necessity to send alleged minor offenders who were certifiably insane to lunatic asylums rather than convicting them, but many weak-minded offenders were not certifiable and ‘in the very nature of the case the punishment of imprisonment has no deterrent effect’.23 We can see here quite clearly the underlying logic which according to Foucault led courts towards an increasing reliance on medico-legal expertise. Punishment is supposed to deter, but those who are punished repeatedly (as demonstrated by prison record-keeping) show that they have not been deterred, and it is only by acting on the basis of a knowledge of the criminal’s career, character and heredity, that the courts can identify offenders in need of segregation or cure. But this knowledge constructs a subject who eludes legal categories: With his irregularities, his lack of intelligence, his failures, and his unflagging infinite desires, a series of elements are constituted concerning which the question of responsibility cannot be posed, or simply cannot arise, since ultimately, according to these descriptions, the subject is responsible for everything and nothing. (Foucault, 2003: 21) Foucault saw the response to this dilemma as the emergence, from the end of the nineteenth century, of the ‘doctor-judge’ – the doctor as judge and the judge as doctor – who practiced ‘the fine profession of curing’ the individual delinquent (2003: 23). But there was little appetite for such a role among the judiciary, or in the legalistic culture of the Home Office. A retired senior judge told the Royal Commission: ‘Imprisonment for punishment is one thing; segregation for imbecility is another, and I do not think the two things should be mixed’.24 As Simmons (1978) and Johnstone (1996a) have argued, while ‘idiots’ and ‘imbeciles’ were seen as needing care by reason of their intellectual disabilities, the ‘feeble-minded’ were objects of concern primarily because of their criminal or feckless behaviour. The Royal Commission constructed a theory of the feeble-minded offender as partially responsible, which meant in effect that he or she would be treated both as a responsible legal subject to be punished and as an irresponsible object of preventive detention once the sentence had been served. Of course, if it could be suggested that no such mentally defective person could be in any degree responsible, the course suggested here

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could not be defended; but all the evidence goes to show that in these cases there is no fixed line in regard to the sense of responsibility any more than there is a fixed line in the nature and extent of mental defect…. Recognising these variations, therefore, we suggest that the element of punishment should be retained, so far as it is valid, but that …care and control should follow.25 The Commission did not define what it meant by the ‘sense of responsibility’, but saw it as being correlated with the degree of ‘defect of the brain’.26 Whatever it was, it was too subtle for juries to determine: ‘a jury who may well deal with the question whether or not an act was committed by the defendant, can hardly be expected to decide also the very much more complicated question, whether the act was a voluntary act done by a responsible agent’.27 But despite this frontal assault on the rule of common truth, the Commission accepted that legal responsibility would continue to be determined by juries applying the McNaughton rules.28 A modified version of the Commission’s proposals was enacted as the Mental Deficiency Act, 1913. In place of the Royal Commission’s combination of punishment, care and control, the Act adopted a compromise between medical and penal approaches which is still broadly reflected in English law today. The decision whether an offender was a mental defective was separated from the decision as to legal responsibility and treated as part of the sentencing process. Alternatively, the judge could adjourn the case and let the local authority apply for a civil commitment order (from a specially appointed magistrate). The magistrates’ courts had the power (giving statutory effect to a long-established practice) to detain a mentally defective offender without conviction. The Act also introduced a power (s. 9) to transfer mentally defective prisoners to hospital. In practice, the impact of the Act on criminal justice was relatively limited, reflecting the views of prison medical officers that only a small minority of prisoners were so weak-minded as to need detention elsewhere (Walker and McCabe, 1973). The annual number of detention orders made in criminal courts (predominantly in magistrates’ courts) was initially in double figures, and although this rose to 332 in 1938, it was offset by a decline in transfers from prisons (East, 1949: 41). The provision of the Act which seemed to mark the most radical step towards the medicalisation of crime had even less practical impact. This was the inclusion of the ‘moral imbecile’ in the list of categories of mental deficiency. The ‘moral imbecile’ was largely, though not exclusively, the product of medical theorising about repeat offenders and those who resisted

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prison discipline (Watson, 1988). Johnstone (1996a) has distinguished between two strands in this discourse – one which attributed moral imbecility or something like it to a large section of the criminal class (e.g. Maudsley, 1874) and one which applied the term more restrictively to offenders whose conduct showed a quite startling absence of prudence or ‘common sense’. The leading theorist of moral imbecility, Mercier (1905: 201), defined it as ‘an original defect of character displayed from an early age’ and manifested ‘in an inability to be deterred by punishment, however severe, certain and prompt, from wrongful acts’, or at least in a failure to be deterred ‘by the punishment which would ordinarily be awarded’. In the evidence to the Royal Commission, however, moral insanity or imbecility – some witnesses did not clearly distinguish between the two – were associated with sexual deviance and financial irresponsibility among the classes of people whose families could afford to consult private specialists.29 As Watson (1994) argues, the diagnosis of moral imbecility suited the methods of observation employed by prison doctors, but did not find favour with outside experts who preferred to diagnose mental deficiency using intelligence tests. Moral assessment, however, remained important in the certification of all forms of mental deficiency (Thomson, 1998: 245).

The magistrate as ‘doctor-judge’ Though the senior judiciary in England never bore the slightest resemblance to Foucault’s ‘doctor-judge’, ‘the fine profession of curing’ did appeal to some magistrates in the inter-war years. Magistrates were more deferential to psychiatric expertise than judges and juries, and would ‘usually exempt from punishment those certified as insane’ (East, 1927: 27). A few magistrates made extensive use of psychiatric reports. After the Great War the Birmingham justices established a scheme by which defendants were examined in a specially adapted wing of the local prison or, more rarely, by a psychologist outside the prison (Birmingham Justices, 1921; Lancet, 1919; Smith, 1922). But despite official encouragement for magistrates to obtain more medical reports, especially for juveniles, the use of reports remained uneven (Bailey, 1987). The magistrates most likely to sympathise with a psychiatric or psychological approach were those who joined the Magistrates’ Association established in 1921, in its early days a small, reform-minded body which ‘adopted and championed an entirely new image of the magistracy which was based upon scientific skill’ (Vogler, 1990: 80). The new

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breed of magistrates did not claim scientific expertise in their own right, but rather a sufficient working knowledge of psychology to be able to steer a common-sense, practical course between science and law (Clarke Hall, 1926: 13–14). What they wanted, according to the stipendiary magistrate for Bradford, was ‘a medical examination interpreted from a common-sense point of view’; specialised psychiatric knowledge ‘was not required in the case of the great majority of these petty delinquents’ (quoted in Magistrates’ Association and BMA, 1939). The leading exponent of this approach where juveniles were concerned was Sir William Clarke Hall, a metropolitan stipendiary magistrate who ‘incurred the ridicule of old-fashioned legal critics for the psychiatric “circus” said to attend his court’ (Lancet, 1936). Clarke Hall gained the support of at least two of his fellow metropolitan stipendiaries, Claud Mullins and John Watson, but not of the Chief Metropolitan Magistrate who denounced him to Mullins as ‘a dangerous man’ (Watson, 1942; Mullins, 1948: 163). Rose (1985: 174) sees these developments as the beginning of ‘a new psychological jurisdiction’. Cox (1996), however, has stressed how limited was the impact of psychology on juvenile justice between the wars, as has Donzelot in his study of France (1979: 133–4). Donzelot’s argument that philanthropy was much more significant than psychiatry in observing and controlling delinquents in this period can be applied to the position in England of the charitable (though statesupervised) probation officers and certified schools (Bailey, 1987). Only Birmingham, Bradford and London had schemes for assessing defendants psychologically in a non-custodial setting; juveniles could not be remanded to prisons, the main centres for the medical observation of adults; and plans for a network of State Observation Centres were dropped from the 1933 Children’s Bill owing to financial pressures (ibid: 189–91; Bailey, 1987: 31). The ‘doctor-judge’ was still a marginal figure, albeit sometimes one with a certain flair for self-promotion.

Conclusion My discussion of some aspects of nineteenth and early twentieth century legal practice in England has suggested that the ‘rule of common truth’ was not subverted by medico-legal expertise to anything like the extent that Foucault’s account of the French system suggests (for a critical examination of contemporary practice in these respects see Johnstone and Ward, forthcoming, Ch. 5). In confining my attention to the legal system I do not mean to deny the importance of all the ‘[s]mall-scale

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legal systems and parallel judges’ involved in the punishment and treatment of crime (Foucault, 1977: 21), such as prison discipline, the ‘transcarceration’ of delinquents between, for example, industrial schools and colonies for defectives (Thomson, 1998: 257) or, perhaps most importantly, the granting of reprieves from capital punishment. The psychiatrist William Sargant tells an instructive anecdote in this respect. After a case where he and a colleague managed to get an epileptic found guilty but insane in blatant defiance of the McNaughton rules,30 he met Dr Norwood East, head of the prison medical service and a key adviser to the Home Office on reprieves: He remarked that we had been very ‘naughty’ at the trial – he actually used that word – to behave as we did, since it was his special work to decide, though only after conviction, whether prisoners were medically as well as legally sane. Norwood East went on to say that he deplored any attempts like ours to secure a murderer’s medical acquittal in Court, these being matters that should best be decided by him and others later on (Sargant, 1967: 187). As East’s remark illustrates, English criminal justice was and is based on a separation between the trial, as an inquiry into the act, and subsequent judicial and administrative inquiries into the offender as an individual. This is reflected in the often passive role of the defendant, the restriction of evidence to that deemed directly probative in relation to the specific act charged, and the separation of roles between the judge and jury. Being less interested in defendants’ characters than their French counterparts, English judges were less inclined to call upon medico-legal expertise. These peculiarities of national legal cultures are an important dimension of the ‘scientifico-legal complex’ (Foucault 1977: 23) which is neglected in Foucault’s analysis. Foucault’s main interest was not in court procedures but in disciplinary institutions and the ways in which they created new forms of knowledge of the individual, and his insights have undoubtedly been immensely helpful in understanding phenomena such as the emergence of mental deficiency in England (Rose, 1985; Sim, 1990; Watson, 1994). The idea of the ‘doubling’ of knowledge of the offence by knowledge of the offender is also helpful in understanding how this knowledge circulates in the courts; but again there is a dimension to this phenomenon that seems to receive insufficient attention. As Foucault and his collaborators (particularly Riot, 1978) showed in their study of

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the Pierre Rivière case, it is not only in medical and legal discourse that incidents from a person’s life are selected and arranged to construct a portrait of his character; the same is done in various forms of ‘popular knowledge’ (Foucault, 1978: 206), including broadsheets, journalistic accounts, and sometimes (as in Rivière’s case) the offender’s own words.31 All these accounts produce alternative narratives of the crime (Smith, 1985), and it would not be difficult to show that in some respects they all follow similar ‘rules’ of narrative construction (Jackson, 1988). But this casts doubt on Foucault’s claim that the effect of psychiatric evidence is independent of its ‘rational structure’. In the historical or contemporary English context, as in the French cases discussed by Harris (1989), it is surely more likely that judges and juries assess(ed) such reports in terms of their narrative coherence and plausibility, against a background of cultural assumptions or stereotypes about gender, class, etc. (Ward, 1998, 1999). I suspect that this also goes for the kind of French reports that Foucault (2003: 2–6) quotes at length, which beneath their pretentious jargon simply attempt to construct a plausible, speculative story of the accused’s character and motives. In discussing the relation between legal and medical knowledge, we should not overlook the lay knowledge that makes the ‘rule of common truth’ workable. Notes * I am indebted to Daniel McCarthy and Gerry Johnstone for their comments on a draft of this paper, and to Joe Sim for his advice on the aspects of my PhD thesis on which the paper is based. 1 [1975] QB 834. The ruling was substantially reaffirmed in R v Henry [2006] 1 Cr. App, R. 6. 2 For a striking example, see Morrissey’s (2003, Ch. 4) account of the Australian case of the supposed ‘lesbian vampire’ Tracey Wigginton, whose 1991 trial for the apparently motiveless murder of a stranger lasted approximately nine minutes, based on a guilty plea and a confession that gave nothing more than the bare facts. Wigginton’s detailed confession, which Morrissey discusses in Foucauldian terms, was made to a journalist five years later. 3 M’Naghten’s case (1843) 10 C. & F. 200. 4 See Moran (1981), which includes the House of Lords’ debate on the McNaughton case. The only speakers were the four Law Lords (Lords Lyndhurst, Brougham, Campbell and Cottingham) who conducted most of the House’s appellate work (Stevens, 1979: 30, 37–8). Moran argues, not entirely convincingly, that McNaughton’s motives were rational. The quotation is from Lord Brougham (Moran, 1981: 160). 5 What follows is based on my study (Ward, 1996) of trials where insanity was pleaded which were reported in the medical press (British Medical

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6

7 8

9 10

11 12 13 14

15

16

17 18 19 20 21 22 23 24 25 26 27 28 29

Journal, Lancet and Journal of Mental Science between 1883 and 1939, and on Smith’s (1981) and Eigen’s (1995, 2003) studies of earlier Victorian trials. A good example of this type of trial is R v Watson (1871–2) Old Bailey Sessions Papers (3rd Sess.) 147. Beryl Bainbridge ingeniously incorporates much of the trial transcript in her novel Watson’s Apology (1984). See also Chadwick (1992). ‘Moral insanity’ was characterised by immoral conduct at variance with the patient’s previous character. R v Cross, (1898) 44 Journal of Mental Science 439; R v Viney, The Times, 16 Sep. 1898: 10 (prison medical officer, cross-examined by the defence, conceded ‘that the prisoner was of weak mind, but he could not certify him as a lunatic at the present time’). The Times, 21 July 1856: 10. The report was drafted by two very well-informed, but conservative, alienists, Drs Orange and Mercier, and may not represent the views of the profession as a whole. See Medico-Psychological Association (1895). Including Scottish justice (Ward, 2001). The Times, 1 September 1894: 9. In addition to True, discussed above, a particularly striking example is the case of William Cromwell (1896), NA, HO144/266/A57742. In the inter-war years, both the administrative power of medical experts and the judges’ determination to resist their claims to authority in court were even more strongly marked. See Ward (2002). See NA, HO144/170/A43422 (1897). A Home Office proposal that the Medical Officers be required to state not only that a prisoner was fit for punishment but that there was no reason to doubt his/her responsibility for the relevant act was watered down after opposition from the Prison Commission. Dr. O. F. N. Treadwell, Medical Officer, HMP Parkhurst, evidence to the Royal Commission on the Care and Control of the FeebleMinded [hereafter RCCCFM] Minutes of Evidence (vol. 1), PP, 35: 83, q. 4301. Ibid., written evidence of Dr J. H. Parker Wilson, Medical Officer of Pentonville, q. 4440, p. 258 (with a family tree to illustrate the point). Sir J. Crichton-Browne, psychiatrist and Lord Chancellor’s Visitor in Lunacy, ibid., q. 6,000. RCCCFM Report, PP, 39: 159; Minutes, q. 1323. Ibid., 458 and Minutes of Evidence, vol. V, Appendix. RCCCFM Minutes, vol. 1 q. 1,359, q. 1,346; q. 1,483. R v Marshall, The Times, 10 February 1885; NA, HO144/148/A38399. RCCCFM Minutes q. 1,327. Sir Edward Fry, RCCCFM Minutes q. 5,789. RCCCFM Report, para. 463. Ibid. Ibid., para. 459. Ibid., para. 458. See the evidence of Drs Savage, Mercier and Ferrier, RCCCFM.

74 Punishment and Control in Historical Perspective 30 The unnamed case is clearly R v Lees-Smith, Daily Telegraph, 17–18 March 1943. 31 Harris (1989: 126) points out that nineteenth-century French criminal procedure encouraged the production of such autobiographical narratives, which magistrates perused with interest. She also argues that ‘an unusual degree of cultural interchange’ occurred in fin de siècle France between popular narratives and medical theory, for example in discussions of crime under hypnosis (ibid.: 158).

Part II Penal Policy, Prison Practice and Discourses on Offenders

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4 Moral Guardians? Prison Officers, Prison Practice and Ambiguity in the Nineteenth Century Helen Johnston*

The theoretical work on the birth of the prison in the late eighteenth and early nineteenth centuries focuses on the transformation of punishment, the movement away from torturous, public punishments, to the increasing use of imprisonment to deal with the majority of offences by the mid to late nineteenth century. Frequently, this work is concerned with the regimes, policies and practices of the prison environment, and the experiences of those confined. Whig or orthodox accounts see this change as the progressive movement away from past barbarous practices. Whereas, revisionist accounts argue that the institutions that emerged were part of a wider strategy of social control, through which discipline was dispersed throughout society, and have questioned the motives of reformers and the resulting practices (Foucault, 1977; Ignatieff, 1978; Melossi and Pavarini, 1981; Rothman, 1971; see Introduction). Research on local imprisonment in England and Wales during the nineteenth century has challenged revisionist accounts by arguing that the implementation of prison policies, at the local level, often fell short of the ‘national’ showpiece penitentiaries (Saunders, 1986) on which these theoretical accounts were based. They have also questioned the extent to which these prisons ever met up to the vision of the ‘machine for grinding men good’ (DeLacy, 1981: 211). This chapter is concerned with understanding the role and working lives of turnkeys, warders, prison officers1 between 1835 and 1877 period, and to examine this role within a broader understanding of the nature of local imprisonment at this time. Over this period, England and Wales experienced a significant change in penal philosophy moving from the use of the ‘reformatory’ practices of separate system, enacted in the Prison Act 18392 to a more deterrent regime, based on 77

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low diet, harsh living conditions and hard labour from the 1860s, which only begins to ameliorate by the end of the nineteenth century. This, to some extent is generalising; it is a gesture to the philosophies of punishment that dominated prison legislation during this period. As noted above, not all prisons around the country adhered to such practices, until forced to by centralisation. However, what was significant over this period was the changing role of the government. From the beginning of the nineteenth century, the government began a slow but increasing vigorous intrusion into the administration of local prisons. This began with the establishment of the first government run penitentiary, Millbank, the implementation of prison inspectors in 1835, and culminated in the centralisation of the local prisons in 1877. The changing relationship between local prisons and the government ensured increasing bureaucratic control and an emphasis on uniformity in prison regimes that manifested itself most significantly after the 1860s (see Chapter 9). This chapter seeks to extend an argument, begun elsewhere, that prison policy and practice was ambiguous, contradictory and paradoxical, and this can be exemplified by understanding the role and working life of the prison officer within these penal transformations (Johnston, 2008). Despite the considerable amount of research on prison history, it is often concerned with prisoners experiences of confinement, and rightly so, but the prison officer was central to this experience. It was not the magistrates, prison inspectors, policymakers or, to some extent, the governors, that had the most contact with the confined, but the officers who walked the wings, delivered the food, and monitored labour and exercise. Prison officers remain relatively unresearched in historical accounts and ‘left few accounts of their views and experiences’ (Forsythe, 1987: 113). Despite the focus of attention on Bentham’s blueprint for the Panopticon and the scandals of insanity in the newly created penitentiaries, there has been little consideration of prison staff who implemented these regimes on a day-to-day basis. Moreover, in the growing official discourse, aspects of prison life are hidden by stock phrases; ‘officers have performed their duties with intelligence, zeal and fidelity’ (Pratt, 2004: 79), which reveal little about the working lives of officers. Thus, ‘it is necessary to attempt, from very little evidence, to piece together an impression of the reformatory work of by far the biggest body of prison staff’ (Forsythe, 1987: 113). This chapter seeks to understand the role of the prison officer within the changing prison policies and practices of the nineteenth century and to locate this discussion within a broader argument concerned

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with the ambiguous nature of policy and practice in local prisons. It seeks to understand this ambiguity, alongside the increasingly bureaucratic and controlling arm of the state, which concludes in the secrecy and dominance of state power, evident in the 1860s, but exemplified in the features of prison life from 1877.

Prison regimes in the 1830s and 1840s The dominant penal philosophies over the early to mid nineteenth century focused on the degree to which prisoners could be reformed or altered during imprisonment, or at the very least, not further contaminated by their incarceration. Predominantly, the regimes used sought to prevent contamination using either the separate or the silent systems of punishment. Both systems were imported philosophies from the United States (see Chapter 1) and were based on the idea that through either isolation or silence prisoners could be transformed. Under the separate system, prisoners were isolated in a cell, where they would work, sleep and eat, and they were only able to leave the cell to attend the chapel or exercise. In such circumstances, they were to be masked, to prevent recognition, and the regime also contained a strong emphasis on religious conversion. Under the silent system, prisoners associated during hours of work but were to be silence at all times. Documentation suggests that in the early 1830s, most local prisons were operating a system based on classification. Prisoners were classified by offence and gender (as set out in the Gaols Act 18233), or were subject to the ‘silent system’, or at least some variation of the silent system. Under the silent system, prisoners had to be closely observed by a number of officers or guards during the long hours of labour, thus the system required high levels of staffing. For example, at Coldbath Fields House of Correction, Governor G. L. Chesterton, a leading advocate of the silent system, had trouble overcoming the subculture of the overcrowded prison when he first took charge. Before implementing the system, he spent a number of years gathering evidence to dismiss corrupt guards and attempted to ban all ‘fraternization between guards, prisoners and their families’ (Ignatieff, 1978: 191): Turnkeys … are strictly forbidden to hold familiar conversation with the prisoners or to communicate with them on any subject whatsoever unconnected to their duties … Moreover, it is expected that they will carefully abstain from forming intimacy or acquaintanceship with discharged prisoners of any class or description but

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maintain their respectability by avoiding the company of all such people (cited in Ignatieff, 1978: 192). The silent system required a higher level of staffing, and often prisoners were used as guardsmen or wardsmen to help oversee the large number of prisoners in workrooms. At Millbank Penitentiary, it was argued that these wardsmen undermined the prison officers; warning prisoners of their approach, and preventing officers ‘from restraining or detecting misconduct or irregularity’ (cited in Ignatieff, 1978: 193). Yet the poor staffing levels persisted at some prisons in the following decades. Chesterton reported to the local magistrates of Warwickshire on their prisons in 1847. At Warwick, he observed the poor condition of the buildings, large number of prisoners, and few officers, which he argued was a ‘serious obstacle to the enforcement of wholesome discipline’.4 He thought that to continue to use these prisons in their faulty condition would be ‘to consign to contamination and in all likelihood to total ruin, those who are so unfortunate as to be committed to them’.5 The returns, under the Select Committee on Gaols and Houses of Corrections, in 1835, show information for 40 counties in England and 12 in Wales. They cover 125 county gaols and houses of correction.6 What is apparent from these sources is the considerable diversity in the number of staff, and therefore the operation, of many of these prisons. The overwhelming majority of these prisons were small, 68 of these prisons in England were staffed with three turnkeys or less; in Wales, 16 of the 25 prisons listed had no turnkeys. In a number of these prisons, the staff consisted of the gaoler or governor and a matron, often the gaoler’s wife.7 After the Gaols Act 1823, which forced certain policies on local prisons, notably classification, appointing a chaplain and surgeon, and requiring female staff to supervise female prisoners, an influential step taken by the government in 1835 was the appointment of prison inspectors. The reports made by these inspectors demonstrate the diversity in local prisons across the country. Two of these inspectors, William Crawford and Reverend Whitworth Russell were strong supporters of the separate system and although, the other inspectors did not share this view, they were very influential in the implementation of the separate system in the Prison Act of 1839, and used their reports in early years of inspection to champion this position. However, in the early to mid 1830s, evidence suggests a range of practices in local prisons. The Inspector of the Northern and Eastern

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district noted in 1836, that the construction of prisons was based on classification rather than separation, that sleeping cells were not sufficiently divided to prevent communication, and that solitary confinement was often nominal, without the constant presence of a day and night watch in the passages. He had not found the slightest difficulty in maintaining communication with a person in an adjoining cell. The construction of prisons were ‘favourable to the propagation of sound …and the sense of hearing in prisoners becomes so acute, that the approach of the officers is constantly anticipated, by the noise created by their footsteps, while yet distant’.8 Bisset Hawkins, Inspector of the Southern and Western district presents a rather different picture of the silent system, he had ‘not been able to trace a single mischievous consequence … all those conversant with the interior of prisons … pronounced decidedly in the favour, and entertain an expectation of its probably efficacy in increasing repugnance to incarceration’.9 Although these prisons claimed to operate a silent regime it is difficult to see how the prisoners would have been prevented from communicating at all times, especially where there might only be a handful of prisoners and few staff, or even in larger prisons, where the prisoners were numerous, but the staffing levels low. What this suggests is that despite the growing ideas of the use of different regimes, to ensure the conformity and possible reform of prisoners, practice varied considerably. Whilst the prisons of Coldbath Fields and Pentonville, marched forward with the silent and separate regimes of punishment, many rural prisons although structurally and physically better, than the prisons observed by John Howard, still suffered problems of poor management, dilapidated buildings, and were ill-constructed for the new philosophies of punishment. The opposing system of separation could be enforced with fewer staff, but did require architectural alterations to buildings. Local magistrates were often reluctant to spend the money required to construct cells that were properly ventilated and heated, and to the standard required by the prison inspectors. Yet under the separate system, the degree to which prisoners could be controlled by staff was obviously much higher. Therefore, there was considerable difference in experience of imprisonment for prisoners and staff across the country. As Ireland notes when discussing the separate and silent systems, ‘despite what the Governor may have told inspectors [Carmarthen Gaol] had for many years neither the architecture to employ the former nor the staff to enforce the latter’ (2007: 43).

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Changing role of prison staff Even after the Prison Act 1839, which, in theory, required the adoption of the separate system in all prisons across the country, practice still varied. But these changing ideas about imprisonment, and the ways in which they could be used to alter the minds of offenders, also signified, changing ideas about the role of officers. In the early years of government inspection, prison discipline was found wanting and there is scant reference to prison officers in these years. It is evident from the early reports, that there was criticism directed at those responsible for appointing and discharging officers. It was recommended by Inspector Williams in 1837 that magistrates should appoint and dismiss officers, and that the keeper or governor of the prison should only have powers of suspension.10 He thought it a great inconvenience that officers were retained when incapable of undertaking their duties, due to age or infirmity. He thought officers needed to be rewarded and magistrates were unwilling to discharge them, and that ‘the absence of any provision for old age or infirmity must prevent a more respectable class of persons from seeking such offices’.11 Williams was also concerned that officers were ‘not unfrequently preferred for possessing qualifications as gardeners, or grooms’ demonstrated a relationship similar to master and servant rather than officers performing public duties, and that ‘prisoners had no respect for the turnkeys, beyond that which physical force inspires’.12 What begins to emerge is the notion that a superior class of men need to be secured in the position of turnkey.13 This is reiterated by the Inspectors for the Home District who stated that: of late years increased attention has been given to the selection of Prison officers of every description, and a very favourable change has occurred in their general character. It is a great object to make the situation of Prison officers respectable in the public estimation. They have highly responsible duties to perform, and much must depend on their zeal and fidelity for the success of the discipline which is enforced. Every effort should, therefore, be made for bringing into and retaining in this department of the public services persons of sound principles, respectability and intelligence, who are capable of being trained to the higher duties of Prison management.14 It was thought that, since ‘penal discipline is sustained by moral rather than physical agency’,15 a more respectable and superior person was required to fulfil the role of prison officer. At Millbank Penitentiary, the

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governor-chaplain Reverend Daniel Nihill, ‘required his staff of tough turnkeys to turn overnight into religious missionaries’ (Henriques, 1972: 75). He dismissed officers for swearing and unbelief and those who remained walked around carrying Bibles, and were nicknamed ‘the Pantilers’ (cited in Henriques, 1972: 75–6). Increasingly evident in this period is a change in the language of discipline. The eighteenth century ‘keeper’ had been replaced with the ‘governor’, turnkey with ‘warder’ and ‘apartment’ with ‘cell’. As Ignatieff notes, ‘discipline replaced economy’ and commands became ‘increasingly military in derivation’ (1978: 190; Thomas, 1972). Under the Prison Act 1839, local prisons were to turn their attention to enabling the use of the separate system and within this regime; the role of prison staff was to redirect prisoners from a tendency towards ‘evil’. It was believed that prisoners lacked ‘firm and virtuous familial care’ and ‘had not experienced the redirection of their natures in religious and moral families towards God and virtue’ (Forsythe, 1987: 60–1). During imprisonment, as Forsythe notes, this deficiency was to be rectified through moral example and benevolent human relationships, with ‘prison staff providing what ought to have occurred at a much earlier stage of life’ (1987: 61). As Joshua Jebb (Director of Convict Prisons) remarked, warders ‘must strive to acquire moral influence over the prisoners by performing their duties conscientiously but without harshness. They should especially try to raise the prisoner’s mind to a proper feeling of moral obligation by example of their own uniform regard to truth and integrity even in the smallest matters’ (cited in Forsythe, 1987: 61). Warders were not to be familiar with prisoners, but were to treat them with human dignity, and lead them through example of ‘strict integrity and truthfulness in word and act’ to a ‘higher standard of moral conduct’ (cited in Forsythe, 1987: 61). As Ignatieff notes, the ideological origins of the prison were rooted in the ideas of the new industrialists; ‘the fathers of the factory system and scientific management’ (1978: 62). These principles were also directed at the prison staff, particularly the lower ranks, and not only the prisoners. It was not just the morals and manners of the prisoners that needed reform, ‘the surveillant was himself an individual subject to the same rules of the new disciplinary regime as those in his charge’ (O’Brien, 1982: 224). Prison officers would be distinguished from their charges by their strict adherence to qualities of hard work, sobriety and respectability, traits which would set them apart from moral weakness, idle habits and drunkenness; the precursors of a life in the ‘criminal classes’ (Emsley, 2005b; see Chapter 6). As Forsythe notes, it was clearly

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necessary for ‘warders to understand and exemplify the reformatory aspiration’ (1987: 114). This was particularly the case for female warders on whom high expectations of feminine, maternal, and compassionate behaviour were placed as a means of effecting reform in their charges (Zedner, 1991). Prison officers worked long hours and often residing in the prison under constant surveillance and regulation. They were encouraged or required to attend chapel; Sunday schools were promoted, as were saving banks for officers’ families. These were all endeavours ‘plainly similar to that of the approach to offenders themselves: education, religion and proper moral pursuits were essential to the creation of an attitude of attachment to the prison and fidelity to the state’ (Forsythe, 1987: 114). The main problem for the prison authorities was that the ‘rank and file’ officers were working in an environment that was seeking to discipline and control the very communities from which they were drawn. Those in charge of the prison, and the newly established police forces sought ‘the creation of a reliable cadre of working class disciplinarians, demarcated from their class by the regimens of their corps [but] it proved difficult in practice to find sufficient men capable of adopting the controlled institutional persona envisaged by prison and police reformers’ (Ignatieff, 1978: 192–3). To speak of the separate system as the prevailing philosophy of prison regimes in this period is misleading. Whilst the government pressed for such regimes, local magistrates were slow to implement and practice varied widely across the country. However, the new philosophies of imprisonment did require a different officer to that of the eighteenth century ‘turnkey’. But it is important to note that practice varied, and the role and duties of officers were determined by the degree to which these regimes predominated in the prison where they were employed, the number of prisoners, and the structure of staffing. Thus a large number of staff under the separate system at Pentonville overseeing the confinement of hundreds of prisoners would clearly be different to a small rural house of correction which only held a dozen prisoners under the silent system.

Disciplining prison officers The records of local prisons in this period are peppered with cases of prison officers who were dismissed, fined or suspended for various deficiencies in their duties; these were punishments meted out by

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either the governor, the visiting magistrates, or in some cases, the Quarter Sessions court. The slow, but growing implementation of the separate system and the strict routine made infractions of the rules more observable and surveillance of staff was more regulated, especially in the prisons which had converted the architectural structure to such regimes. One of the most prevalent problems was drunkenness, records show officers being dismissed for being drunk on duty, arriving at the prison drunk, or being found drinking and smoking with prisoners or debtors (Johnston, 2006a). They were also dismissed for neglecting their duties, not returning to the prison at night, improper conduct to senior officers or the chaplain, and the most serious offence against discipline ‘allowing a prisoner to escape’ (Johnston, 2006a). At Lincoln prison, questions were asked in relation to the negligence of officers when prisoners escaped, particularly how the prisoners had known where to look for the key.16 Some local prisons had minutely detailed lists of the fines against officers who neglected their duties. For example, at Shrewsbury prison in 1840 fines listed that neglecting to communicate any order of the Governor to another turnkey, or neglecting to execute any order given to them, inattention to the cleanliness of prisoners under their charge, and carelessly leaving provisions unguarded within the reach of prisoners, or neglecting to search each prisoner once a week, resulted in a sixpence fine. Heavier fines were set down for allowing a criminal prisoners to converse with a visitor out of hearing, or leaving the prisoners without being properly relieved, or being asleep in chapel, or on duty, and these resulted in between a one and one shilling and sixpence fine. All serious cases and second offences were reported to the visiting justices.17 Regulators or ‘tell-tales’ clocks were used to ensure officers or nightwatchmen completed the correct patrols and to maintain close supervision of staff (McConville, 1981). At Liverpool prison in the 1860s, fines of up to five shillings could be levied on officers for neglect or violation of duty by the Governor and heavy fines or reduction of rank or pay could be dealt with by the visiting magistrates.18 Fines of these amounts could make a substantial impact on the household budget of a turnkey, and in some cases, officers had their rank reduced to junior, for a set period of time (Johnston, 2006a). It appears that these practices were fairly widespread, 38 prisons in England and Wales, levied fines for negligence or misconduct before centralisation.19 The Commissioners wanted to implement the system across all local prisons and laid out a new scale of fines in 1879. These fines ranged from sixpence to one shilling, for being late on

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duty, inattention or carelessness in duty, slovenliness on duty or in uniform, allowing prisoners to communicate to between one and two shillings for disobeying orders, gross neglect of duty or carelessness or neglect affecting the security of the prison. Repeated offences, or grave offences, such as trafficking with prisoners, sleeping on duty, being absent without leave, insubordination or permitting the escape of prisoners, could be dealt with by a heavier fine of up to two weeks pay, besides loss of pay for suspension from duty, or other punishments which may be awarded.20 As noted above, prison officers were not to leave the prison day or night without permission, on doing so they were required to leave their keys and journal with the Governor. Overnight guests were only allowed with express permission from the Governor and many prisons insisted that officers lived within or near the prison. It was thought necessary to keep the officers away from working-class neighbourhoods from which many of the prisoners came (McConville, 1981). After the centralisation of local prisons, living accommodation had to be built in areas in where rents were beyond the means of most prison officers (Thomas, 1972).

Prison staff and local imprisonment, 1850–1877 By the mid-century the increasing pressure from the government was beginning to pervade life in local prisons. Prison officers’ working lives became highly regulated within the changing discipline of the regime, away from the reformatory ideals of the separate and silent systems, towards the deterrent system which was to permeate the prison experience at least until the end of the nineteenth century. Between late 1840s and the 1860s, the reformative powers of the separate system had collapsed and attention had turned to a more deterrent regime of ‘hard labour, hard board, hard fare’ where discipline was enforced through low diet, long hours of hard labour and sparse living conditions. Some local prisons were still in the process of adapting the construction of the prison to the separate system (Johnston, 2004) and never caught up with the shifting dynamics of the prison philosophy from above. The use of separate cells remained; it was the ‘reformative’ powers of the separate system that were lost as public and official discord with the system grew (Henriques, 1972; Johnston, 2006b). It is at this point that prison life for officers becomes increasingly regimented and constrained. Rules and regulations which governed their working lives, and the stricter prison regime and timetable became

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more regulated. Primarily, their role continued as before; the day to day operation of the prison, to obey directions of the governor, to examine the state of the cells, bedding, locks and bolts, and to seize prohibited articles from prisoners.21 They were not permitted to leave the prison without permission or to have any visitors. The hierarchical organisation of the prison and its architectural structure of surveillance allowed those in authority to ‘spy on all employees that were under his orders: nurses, doctors, foremen, teachers, warders; he will be able to judge them continuously, impose upon them the methods he thinks best’ (Foucault, 1977: 204). The increasing hold of the government over local prisons was beginning to manifest itself more significantly, and this affected the lives of prison officers as well as prisoners. In turn, the day to day working life of the prison officer was also influenced by another contradiction. Despite pressing for uniform practices; it was thought that some groups should not or could not be subjected to the rigours of such regimes; namely, debtors, prisoners suffering from mental illness, juveniles and mothers with babies. In some cases, for example, debtors, they were not ‘criminal’ prisoners, but being detained until a debt was settled, and in others, like juvenile prisoners, it was thought the rigid application of such regimes might be damaging to the minds of young people. Thus prison officers were pressed on the one hand to implement reformatory, and then later deterrent regimes, but were confronted by various groups of prisoners to whom such regimes could not be applied, and their role was perceived differently. A further ambiguity in the application of prison regimes was the use of short sentences, often for minor offences, such as petty larceny or drunkenness (see Chapter 7), which resulted in days or weeks’ imprisonment, rather than months. During this short time, it was thought the reformatory aims of the system were simply impracticable, and in the latter period, often ensured severe conditions for short term prisoners. These two issues continued to haunt the application of prison policy for much of the remainder of the nineteenth and into the twentieth century. Whilst there is not room here to discussion the complexities of scandals which occurred in some local prisons during the mid century, minutes of evidence and reports concerned with the treatment of prisoners at Leicester and Birmingham in 1854 do provide us with a deeper glimpse into the working lives and daily activities of the officers and the ways in which discretion and relationships with prisoners manifested themselves.

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The minutes of evidence contained in the investigation at Leicester reveal that the warders duties consisted of delivering food to prisoners, taking prisoners to and from chapel, and exercise, and supervising them in the chapel, and under hard labour. Hard labour at Leicester was the central issue in the investigation, the warder in charge of the crank ward came under scrutiny and was severely criticised, at least by the prisoners who gave evidence, as was the regime, under which prisoners had their meals withdrawn as punishment. The reports by the Commissioners noted that the ‘intensity of the labour …[was] in the hands of the prison officer’22 as the officer controlled the weight at which the cranks were set, this may, they thought engender feelings of irritation in prisoners who conceive the intensity of the labour to be arbitrarily set. This method of setting of cranks appears to indicate the origin of the term ‘screw’, used to refer to prison officers. The Commissioners noted that almost every one of the prisoners subject to this regime stated his belief that the warder ‘had been in the habit, wantonly and cruelly, of increasing the hardness of the cranks, and gave utterance to expressions of bitter resentment against him for his supposed cruelty in doing so’.23 However, they noted that the prisoner being under the direct control of the warder may excite in the prisoner feelings of resentment, the expression of which may lead the warder to ‘further severity until this ends in systematic cruelty’.24 The discretion of this crank warder was called into question, but the prisoners’ evidence was often, at least implied to be unreliable, and the Commissioners praised the warder for his ‘discretion, humanity and veracity’.25 The day-to-day activities of the officers also show that officers were responsible for reading the rules of the prison, or hard labour to the prisoners, and that prisoners had to be told when they had completed the labour (as the counters were outside the cell) and prisoners’ also claimed that officers prevented them access to the surgeon or Governor. Although the surgeon went round the prison daily, a number of prisoners claimed that he went so quickly through the ward, without stopping, that it did not allow them time to call his attention.26 During this investigation, the Commissioners held a thorough examination of the daily report book by the officer in the crank ward, indeed this provides meticulous details of the prisoners’ hard labour as the below example, of the failure to meet the required daily target of 14,400 revolutions per day, highlights: No 2228, Joseph Allsop, received the 24th of May. May 25th, ‘reported idle, first report; 7200 bad.’ The 27th, ‘reported idle, second report;

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3300 bad’. The 28th, ‘breakfast at 8am by mistake; dinner at 2pm; supper kept back; reported idle; 1300 bad’. The 29th, ‘had last night’s supper at 6pm today; reported idle; 7700 bad’. The 30th ‘had yesterdays’ breakfast at 8am; dinner and supper at usual time; has done better today’ On June 2d, he is reported ‘for being idle yesterday, fifth report, 2800 bad’, June 3d, ‘breakfast at 9am; dinner 1pm; supper kept back’.27 Similarly, at Birmingham Gaol, the governor, surgeon and visiting justices were severely admonished for the cruel regime which had resulted in the death of a fifteen year old prisoner, Edward Andrews. Chief Warder, Freer, and father and son warders’, Thomas and Edward Cotterill, came under scrutiny and evidence given at the inquiry alleged their maltreatment and physical violence towards prisoners. This resulted in the dismissal of some of the subordinate officers and only one warder, William Brown was praised by the Commissioners, ‘who felt that he had exhibited great sympathy towards the prisoners under punishment and had attempted to relieve their suffering’ (Roberts, 1986: 329). By the 1860s the parameters for the prison officers working lives were being more tightly drawn. Inspector Perry, giving evidence to the Carnarvon Committee in 1863, thought that amongst the subordinate officers there were ‘a great many very competent men’.28 Although there were still dismissals, the Committee noted one case of a chief warder passing communications between two prisoners, this was his ‘general impression’. The Committee also discussed a case of a woman confined in a gaol where her husband was the warder. Perry thought that although these cases did not occur frequently, he did not see how they were to be avoided. This is another indication of the close relationship between the local prison and the community in which it was located. In Goffman’s assessment of the ‘total’ institution he maintains that the social distance between the inmates and the staff is ‘typically great and often formally prescribed’ (1961: 19). However, this does not appear to be the case between officers and prisoners in the decades before centralisation. Although, the relationship is formally prescribed there was little social distance between the two groups. As Sykes observed, in an early sociological account of the prison, officers closely associated with prisoners throughout the working day, they could not physically withdraw, there was no one else to bear the brunt of resentment when orders were disliked, and they were seen as ‘a hack or a screw in the eyes

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of those he controls’ (1958: 54, original emphasis). Therefore they possessed few of the ‘devices which normally serve to maintain social distance between the rulers and the ruled’ (Sykes, 1958: 54). However, social distance was more apparent between prisoners and superior officers and certainly the governor, in the nineteenth century. Yet, there was concern about the moral character of the staff and isolating them from the working-class community. As Brown notes when discussing Hull prison, the inmate culture of the local prison was ‘linked to the local community, bringing in both its negative and positive elements and contributing to the diversity of the local prisons’ (2003: 79). McConville argues that the ‘lingering localism of English life’ meant that often there were ‘ties of familiarity and sentiment between local officials and prisoners. Family names, backgrounds and places allowed officials and offenders to meet on a human plane (1998: 131). Even after nationalisation this was not eradicated, but ‘prisoners and subordinate staff would be treated more by the book and less in terms of their individual characteristics or the customs of the locality’ (McConville, 1998: 131) as senior prison officials were rotated through several prisons during their careers. Documentation of prison officers working conditions reveal the long hours which they continued to work. A committee of magistrates at Wakefield reported a higher rate of mortality amongst prison officers during the preceding ten years, as compared to other large county prisons. The average hours of attendance in other prisons, deducting Sundays and leave of absence, was 74.5 hours per week and at Wakefield, 73.75 hours per week. However, the committee adopted a policy to reduce working hours to 70 per week in light of the higher mortality rate amongst their officers.29 From the evidence collected on the larger county prisons, full hours of weekly attendance ranged between 67.5 hours at Warwick to 83.5 hours at Winchester and Birmingham. Most local prisons allowed 13 Sundays absence per year and 7 days leave of absence but practice varied. At Coldbath Fields only 4 Sundays absence were allowed, but 10 days leave, whilst at Wandsworth, 13 Sundays absence were permitted but only 3 days leave per year.30 It is not difficult to see why commentators have referred to the officers as ‘the other prisoners’ (Hawkins, 1976: 81; see Chapter 5). Long hours of work persisted into the early twentieth century. Petitions from officers at Bedford prison in 1899 called the Home Secretary’s attention to the excessive hours of duty, no extra pay for working Sundays and Bank Holidays, when on evening duty they may have worked 36 hours at a time, without extra pay or time off.31 The working hours in

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all local prisons were from 6am to 6pm weekdays, Sundays 7am to 5pm, allowing time for meals (40 minutes for breakfast and 1 hour, 10 minutes for dinner). Officers were off duty every other Saturday afternoon, and every other Sunday, but were liable to be called in if wanted. Officers were on duty all Bank Holidays, without extra pay, and without evening duty worked 82 hours per week (seven days). Furthermore, each officer took evening duty either once, twice or three times per week depending on the prison in which he worked. One evening duty resulted in 94 hours work, two evening duties, 106 hours work, and three evening duties 118 hours work per week. When on evening duty, officers left the prison at 4pm returning at 5.45pm they were then actively on duty until 8pm or 10pm and afterwards slept in the prison where liable to be called upon during the night.32 It appears these petitions from Bedford prison were part of a wider submission of petitions emanating from eleven prisons, signed by 272 subordinate officers. In considering these petitions, then Commissioner, Evelyn Ruggles-Brise, thought that the expansion of prison staff would ease these problems, and issued a standing order instructing governors to try to ensure no officers was on duty for more than 24 hours. But the requests for an eight hour working day and extra pay for Sundays and Bank Holidays, he thought was not a demand widely shared by any considerable number of officers and ‘cannot in any case… be entertained’.33 Despite the unremitting grind of the prison machine, it appears that many officers stayed in such positions for a number of years. Evidence from Wakefield in 1865 shows service of over fifteen or twenty years, in the male and female sides of the prison.34 This was not uncommon, other research on local prisons shows that although some employees only stayed for two or three years, there was a substantial minority who served long periods. Prison work was secure, and it provided a pension, making it a stable position, especially in the rural or agricultural areas where employment was seasonal affected. Registers of Officers from Hull, Lincoln, Wakefield and Nottingham35 from the late nineteenth and early twentieth century show that many officers remained in the service for long periods of their lives.

Conclusion The control of the local prisons was transferred to the government in April 1878 when the Prison Act 187736 came into force. The system came under the control of the Prison Commission, the then Chairman

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Lieutenant-Colonel (later Sir) Edmund Du Cane. The establishment of the Prison Service bought together the staff from local prisons, with those working in the Convict Service, which had been established in 1850. From then on, applicants who wished to join the service would apply centrally rather than being appointed by the local prison governor or magistrate. Pay was set at the national level and the staff supplied with uniforms. Those officers who wished to reside in the prison could do so and quarters were free.37 The officers in local prisons were placed on a new pyramidal structure of staff, from the Governor at the top, followed by the Chief Warder, Principal Warders, Warders, and then Assistant Warders (Thomas, 1972). Centralisation also resulted in the closure of 37 prisons, bringing the total number of prisons in England and Wales to 69 by 1878.38 Du Cane distributed the staff around the system; other staff saw this as the time to leave the service (Harrison, 2000). After the Gladstone Committee in 1895, the rigid and uniform discipline of the Du Cane era was ameliorated, at least, for some prisoners. Juveniles, those with mental health problems and inebriates (see Chapter 7) were removed from the prison and the new policy ethos focused on ‘rehabilitation’ and welfare. The training of prison officers began in the 1890s, when schools opened at Chelmsford, Hull, Wormwood Scrubs and Manchester prisons (Johnston, 2008). In the opening years of the new century prison officers remaining active in voicing concerns over their working conditions and collective representation (Thomas, 1972; see Chapter 5). During the nineteenth century, the role and duties of prison officers were affected by the size, structure and regime of the prisons, in which they worked. As government control over local prisons grew, the duties and working conditions of officers were more closely observed and administered. In the period of reform, advocates of the reformatory systems sought morally upstanding officers to provide an example to prisoners and lead them away from a life of crime. Yet this was often undermined by the close relationship between the local prisons and the community, the turnover of staff and the types of prisoners held. Many officers would have ‘regarded reformatory endeavours as the preoccupation of their gentlemanly superiors, which had little effect on the nature of the criminal’ (Forsythe, 1987: 115). As the century progressed, the movement towards more deterrent prison regimes, resulted in stricter controls on officers, with regard to respectability and the completion of their duties. Whilst there was less focus on moral example as a reformatory measure, adherence to the timetable, standing orders and

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regulations, and uniform prison practices was paramount in the professionalisation of the service. Thomas (1978) argues that through the prison hierarchy, staff discretion was clearly prescribed, this helped staff to understand what was expected of them and eliminated vagueness. Although some of the ambiguity in prison policy had been removed with centralisation, short sentences and groups of prisoners which required different provision were still evident in the system. In the years following centralisation, the lives of prison staff and prisoners vanished behind the closed door of bureaucratic government administration, links with the local community, although not entirely severed manifested themselves in a different way. Local prisons operated more as walled islands within the community – only reached by some but unknown to many – where the prisoners and staff were located in, but isolated from the community. Notes * This research was supported by British Academy Small Research Grant Award No: SG 40723. The author would also like to thank the archivists at their respective record offices and museums for their assistance with this research. 1 In the early years of the century prison officers were frequently referred to as turnkeys, as the decades progressed this was replaced with warder and later ‘prison officer’, which was officially adopted in 1922 (NA, HO 45/11082/ 427916) although in common usage before this time. 2 2 & 3 Vict. c. 56. 3 4 Geo. IV. c. 64. 4 QS24/585 Warwickshire County Records Office, Warwick. 5 Ibid. 6 Select Committee of the House of Lords on Gaols and House of Correction in England and Wales: First Report; Second Report; Third Report; Fourth and Fifth Reports, Minutes of Evidence, Appendices, Index, 1835, PP, (438) (439) (440) (441), XI.1, 495, XII.1, 57, Appendix 22: 593–622 (This may not include other town, city or borough gaols and houses of correction). 7 Ibid. 8 First Report of the Inspectors of the Prisons, (hereafter RIP), Northern & Eastern (NE), 1836, PP, (117–II), XXXV.161, 4. 9 First RIP, Southern & Western (SW), 1836, PP, (117–III), XXXV.269, 2. 10 Second RIP, NE, 1837, PP, (89), XXXII.499, 3. 11 Third RIP, NE, 1837–8, PP, (134), XXXI.1, 2. 12 Ibid. 13 Third RIP, SW, 1837–8, PP, (135), XXXI.177, 1. 14 Fourth RIP, Home, 1839, PP, (210), XXI.1, iv. 15 Fourth RIP, NE, 1839, PP, (199), XXII.1, ii. 16 CoC 4/1/27 Letter 306, Lincolnshire Archives, Lincoln. 17 For a complete list of fines see QA 2/1/2, Visiting Justices Reports, Shrewsbury Prison, Shropshire Archives, 57.

94 Punishment and Control in Historical Perspective 18 347 JUS/4/2/2, By-Laws of Liverpool Borough Prison 1865 to 1874, Liverpool Record Office, Liverpool. 19 NA, HO 45/9517/21125A. 20 Ibid. 21 Regulations for the Government of Prisons under Prison Act 1865, 1867, West Yorkshire Archive Service [WYAS], QT1/3/43. 22 Royal Commission to inquire into the Condition and Treatment of the Prisoners confined in Leicester County Gaol and House of Correction; together with the Minutes of Evidence, 1854, PP, (1808), XXXIV.197, xiii. 23 Ibid. 24 Ibid. 25 Ibid., xv. 26 Ibid., Minutes of Evidence. 27 Ibid., Minutes of Evidence, 86. 28 Select Committee of the House of Lords on the Present State of Prison Discipline in Gaols and Houses of Correction [Carnarvon Committee], 1863, PP, (499), XI.1, 32. 29 QD 1/354 Wakefield House of Correction, Documents relating to Prison officers, 1860–1865, WYAS. 30 Ibid. 31 NA, HO 45/9718/A51528E/57. 32 Ibid. When off duty on Saturday afternoon and Sunday and without evening duty the working week consisted of 66 hours on duty and this was the minimum hours that could be served. 33 HO 45/9718/A51528E/57. 34 QD 1/359 Wakefield House of Correction, List of Officers, 1865, WYAS. 35 DPHG/4/1 Register of Officers: HMP Hull, Hull City Archives; Lincoln Prison 5 Register of Officers: HMP Lincoln, Lincolnshire Archives; Register of Officers: HMP Wakefield, WYAS, Register of Officers: HMP Nottingham, Prison Service Museum, Galleries of Justice, Nottingham. 36 40 & 41 Vict. c. 21. 37 First pay scales in July 1878, Chief Warders received a minimum of £125 per annum, with an annual increment of £2. Principal Warders were paid a minimum of £85 per annum, Warders, £70 per annum, Assistant Warders (and Messengers and Watchmen) £60 per annum, all with an annual increment of £1. Female Warders were paid £55 per annum with an annual increment of £1 and ten shillings and Assistant Female Warders received £45 per annum with an annual increment of £1 (Report of the Commissioners of Prisons, 1878, PP, (C.2174), XLII.1, 31). 38 Ibid., 36.

5 The Man, the Machine and the Myths: Reconsidering Winston Churchill’s Prison Reforms Jamie Bennett

It has been argued that the modern penal system emerged during the last years of the nineteenth century and the early years of the twentieth century, a system that recognised prisoners as frequently being the victims of social circumstances and sought to ameliorate harsh conditions in prisons and provide reformative services including education and training (Garland, 1985). This more liberal and humane prison system was controversial and contested as it was in marked contrast to previous ideas and practices, based on a moralistic view of offenders and the predominance of harsh punishment and segregation acting as both a deterrent, and an opportunity for personal reflection. Despite the momentous nature of the battle of ideas that was taking place during that period it has been subjected to relatively little research. In contrast, one individual from this period has attracted significant popular attention as a person who not only symbolised the changes taking place, but has been credited by many as single-handedly transforming the prison system in less than two years. That man was Winston Churchill. Churchill first achieved fame not as a politician, but as a prisoner. Whilst working as a correspondent during the Boer War in 1899, the train he was travelling on was attacked and after a short gun battle, he was captured and taken to Pretoria as a prisoner of war. Twenty-eight days later, he escaped and successfully made his way to safety. This event was mythologised both in the press, keen for good news to cheer a nation depressed by the reverses against the Boer, as well as in one of the first of Churchill’s self-penned books that sought to seal his own historical legacy (Churchill, W., 1900). When elevated to the position of Home Secretary in 1910, Churchill’s responsibilities included prisons, and his personal experience of imprisonment was seen by 95

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many as providing him with an intense appreciation for the pains of imprisonment and a humanitarian concern for prisoners. His official biographers claimed that; ‘the loss of freedom had irked him greatly, and he felt he had some affinity with the life of the prisoners…He sought to help prisoners in every way, short of escaping’ (Churchill, R., 1967: 386) and; ‘Underlying Churchill’s prison reforms was a real understanding of the nature of imprisonment from the perspective of the prisoner’ (Gilbert, 1991: 214). Churchill himself was happy to play up to this myth. In his original book about his experiences in South Africa, his description of the pains of imprisonment was limited, describing his frustrations at being placed on the sidelines, the monotony of life and his inability to concentrate on reading and writing (Churchill, W., 1900). However, following his time as Home Secretary, he came to revise and elaborate this tale, intensifying its vividness and depth, and promoting his reputation as a sensitive reformer inspired by personal experience (see Churchill, W., 1930). The romantic myth, elaborated and maintained by Churchill and his official biographers, has become part of popular iconography. This is symptomatic of the problem of trying to understand and reconsider both Churchill and the period in which the modern prison system emerged. Churchill has achieved a status that has been compared, if a little flippantly, to a ‘canonisation’ (Benn, 1987: 24), he is depicted as being above and beyond his time, a figure that dominates and shapes his era. He has come to be depicted without context other than his own agency, where every act is seen to break the mould and challenge convention. However no man exists in a vacuum, all are shaped to some degree by the values, ideas and institutions of their age; the material and intellectual structures. This reconsideration of Churchill’s Home Secretaryship will attempt to reconnect his work with the developments in criminal justice at that time. It will also attempt to appreciate how this era marked a stage in Churchill’s own personal political development. Bringing these two ideas together, this chapter will attempt to cast light on the interaction between social structure and the individual, the mutually influential relationship between a man and the prison machine. This is an attempt to draw upon ideas of structuration (Giddens, 1984), which describes how structures and individuals interact to recreate and transform society. By examining these issues, it is hoped that the reader will be taken beyond the simple romantic myths, no matter how attractive they are, and can glimpse the events of 1910–11 with an appreciation of the tensions, the conflict and complexity that they hold.

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Crime and prisons in 1910 Whilst the Edwardian era is sometimes seen as a tranquil golden sunset to the Victorian age before the harsh night time of the Great War, the reality is that it was a more turbulent time than this broad-brush portrait reveals. It was an era when many of the ideas of the modern state started to emerge into public policy, albeit challenged and contested (Hattersley, 2004). The most dramatic examples of this, were the constitutional battles that ultimately led to the supremacy of the Commons over the Lords being enshrined in the Parliament Act 1911, the development of a direction in social policy that has been described as a prototype welfare state, following the election of the Liberal government in 1906 (Hennessy, 1992), and a series of violent industrial and social conflicts that marked the emergence of a more assertive population such as the violent strikes at Tonypandy and the Suffragette and Irish Home Rule campaigns. These developments can be seen as moving towards a more democratic state where the whole population had a voice rather than being dominated by economic and social elites. However, these developments were intensely contested, sometimes violently, and the strength of the interests involved meant that the results were controversial, partial and incomplete. Changes in values and practices reflecting this broader social context can be seen in prisons and crime policy during the years leading up to Churchill’s time as Home Secretary. The early and mid-Victorian approach to crime and criminals was concerned with the problems arising from unregulated human conduct, particularly as the material and social developments of the age, such as improved transportation, greater urbanisation and growing material wealth, increased the opportunities for individualism and the ability to meet human desires (Wiener, 1990). This was perceived as the dark, anarchic side of the opportunities afforded by industrialisation, the destructive temptations of the new age. As part of this, crime was seen as an issue of individual weaknesses, taking on a moral character. People were expected to exercise restraint and self-control so as to resist the corrupting urges that they felt and which could more readily be satisfied than in the past. In order to enforce this, the apparatus of criminal justice emerged, including the growth of organised police forces and the expansion of imprisonment. General deterrence was seen to be best served by uniformity and certainty through detection, trial and punishment, and moral improvement was sought through religious teaching and harsh treatment including physically punishing work.

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The later-Victorian era saw this orthodoxy start to be eroded as new ideas competed for dominance. This was partly due to the success of the strategies implemented to control the population, which led to a reduction in crime and therefore a greater sense of safety. The desire for control started to be superseded by a growing concern that people felt constricted. In crime policy this was increasingly felt by the middle classes as they started to find themselves directly affected, becoming embroiled in popular discontent such as Irish Home Rule, the Suffragette movement, anti-vaccination campaigns and the forceful evangelism of the Salvation Army (Wiener, 1990). Increasingly, influential individuals including intellectuals, professionals and the famous philanthropists started to highlight that crime and social conditions were closely linked. These factors combined to support the emergence of a more sympathetic image of offenders, where; ‘the criminal was no longer a wicked individual but rather a product of his environment and heredity’ (Wiener, 1990: 226). These conflicting images and ideas were the background to the penal crisis of the 1890s. Ostensibly, this crisis was brought about by concerns about maltreatment and the ineffectiveness of imprisoning large numbers of poor people, and was fed by powerful advocates of reform such as William Morrison, Chaplain of Wandsworth prison (Harding et al., 1985), but was essentially a battle of ideas between Victorian orthodoxy and the newer idea of a socially conscious criminal justice system. A Commission was established to examine the management of prisons, led by Herbert Gladstone (also see Chapter 9). This famous report, published in 1895, was widely seen as ushering in a new approach based upon greater concern for reform and rehabilitation. The man brought in to implement these reforms described this report as; ‘mark[ing] the passage from the old to the new methods of punishment, and from those which rested upon severity and repression to those which looked more hopefully towards the possible reformation of persons committed to prison’ (Ruggles-Brise, 1921: 76). However, the report did not focus exclusively on rehabilitation and concern for prisoners, but it established a twin aim of prisons, henceforth they were to both deter and punish crime on the one hand, and to reform the prisoner on the other. Thus whilst the report gave support to the new ideas, it did not reject the past instead it was an approach that institutionalised a duality that would inevitably cause tension. The period from 1895 through to 1914 and beyond into the immediate post-war era, was one in which the role of imprisonment was sharply contested. On one hand, it has been described that this was an era in which, ‘The penal-welfare complex’ emerged (Garland, 1985:

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159), marking a radical reinvention of the role and nature of punishment. This was manifested in policies including ameliorating and reducing harsh conditions such as separation and punishing physical labour, improving education, training and aftercare, and developing specialist facilities to divert the young, the mentally ill and those worst affected by social problems, such as drunkards and vagrants. However, it has alternatively been argued that the reality of the day-to-day experience of imprisonment changed little and the changes that did occur were not dramatic (Bailey, 1997) and that new ideas were less clear cut and more pragmatically adapted into older practices in prison management (Forsythe, 1995). This argument suggests that the changes were largely based on a desire to ameliorate the worst excesses and to graft new ideas into the existing system rather than marking a radical reinvention of prisons, and so it has been described as ‘a development, on less repressive lines, of the older system of prison discipline’ (Bailey, 1997: 296). That is not to say that such an approach could not have dramatic consequences, in particular that amelioration in this context encompasses the abatement in the use of imprisonment that was so spectacularly evident during this period. This era can be described as one in which the purpose of imprisonment and the social ideas that framed it were being contested. As a result there was not a smooth, orderly, Whiggish procession, but instead it was ‘fragile and contingent’ (Pratt, 2002: 6) in as much as the extent and nature of any changes were dependent upon the degree of visibility at any particular time, and the outcomes ‘fragmentary’ (Garland, 1985: 162) in as much as they were often a pragmatic compromise. There were a number of reasons for this. First, criminal policy and many of the personnel involved clung to the ideas of the mid-Victorian era and sought to limit or prevent change (Forsythe, 1990). Second, there was no clearly defined strategy or leading strategist to take forward the new ideas (Garland, 1985). Third, there were competing ideas that influenced developments, including those of eugenics (Radzinowicz and Hood, 1990). Fourth, the newer developments may not have been as transformational as proponents suggested but could alternatively be understood as a reinvention of control strategies outside of prison in the wider community (Garland, 1985) or have regressive consequences such as disproportionate sentences justified on the grounds of rehabilitation (Pratt, 2002). This encapsulates the context of the criminal justice debate at the point Churchill became Home Secretary, an era defined by a penological competition raging between the positivist ideas of the mid-Victorian era and the emerging welfarist ideology.

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For Churchill himself, this was also an era in which he was experiencing an internal battle of ideas. In 1904, he had crossed the floor of the House of Commons, leaving the Conservatives and joining the Liberals. Although he played a central role and along with David Lloyd George was one of the most belligerent new Liberals, he was not a natural radical. He was a member of the aristocracy, a patrician and part of the traditional order. The reforms which he played a role in were aimed at ameliorating the worst excesses of laissez-faire economics and social inequality, but by empowering excluded groups these policies also moved increasingly towards challenging the established order. This period therefore marked a point of some moment in his personal political development, where he explored the limits of his own radicalism. When Churchill was appointed Home Secretary on 15 February 1910, it was in the midst of a professionally and personally turbulent period. The battle of ideas that was raging was one that took place as much within himself as it did within his department.

Churchill’s prison reforms On leaving the Home Office, Viscount Gladstone counselled caution to Churchill; ‘As regards Prisons it won’t be a bad thing to give a harassed department some rest’ (Churchill, R., 1969: 1141). This reflected the fact that the system had already undergone significant changes since Gladstone’s own influential report of 1895. However, Churchill had other ideas, and he set his stall out quickly, hoping that this would be an opportunity for him to make an impression. He showed that he would be unconventional, seeking advice from reformers such as Wilfred Scawen Blunt (Churchill, R., 1969) who had served a short sentence for offences connected to Irish Home Rule. Within six days of taking up his post, he also took Sir Evelyn Ruggles-Brise, Chairman of the Prison Commissioners between 1895 and 1921, to a performance of John Galsworthy’s play Justice (Gilbert, 1991). This play was calculated to promote prison reform including exposing the pain of solitary confinement, and it was successful in subsequently generating public concern about the inhumanity of that practice (Nellis, 1996). Churchill followed this on 10 July 1910 with one of the most famous and humane statements of the importance of imprisonment to the community as a whole: [T]he mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civil-

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isation of any country. A calm and dispassionate recognition of the rights of the accused against the State, and even of convicted criminals against the State, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate in the world of industry all those who have paid their dues in the hard coinage of punishment, tireless effort towards the discovery of curative and regenerative processes, and an unfaltering faith that there is treasure, if you can only find it, in the heart of every man – these are the symbols which in the treatment of crime and criminals mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it (cited in Gilbert, 1991: 214–15). With that powerful opening, it was anticipated that this was to be a truly dramatic and radical period of change, but what was the reality? What did Churchill achieve during his time, and was he able to shape the more positive and humane prison system he described? Prison conditions Following the new direction heralded in 1895, some of the harshness of imprisonment had been reduced, for example, separate confinement at the start of each sentence was reduced from nine to six months in 1899, and to three months in 1909, the treadwheel and crank were abolished 1902, and there was a dramatic reduction in the use of corporal punishment, falling from 301 floggings between 1894–98, to 92 between 1899 and 1903, and by 1909, there were only ten floggings throughout the year (Wiener, 1990). Churchill wished to go further in ameliorating the conditions, believing that, ‘The whole process of punishment is an ugly business at best’ (Churchill, R., 1969: 1152–3). As described above, it has been suggested that Churchill was sensitised by personal experience to the harshness of prison life. He particularly resented the boredom and the difficulty in reading and writing he had experienced: Meanwhile the war is going on, great events are in progress, fine opportunities for action and adventure are slipping away. Also the days are very long. Hours crawl like paralytic centipedes. Nothing amuses you. Reading is difficult; writing impossible. Life is one long boredom from dawn till slumber…Looking back on those days, I have always felt the keenest pity for prisoners and captives. What it must mean for any man, especially an educated man, to be confined for

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years in a modern convict prison strains my imagination. Each day exactly like the one before, with the barren ashes of wasted life behind, and all the long years of bondage stretching out ahead (Churchill, W., 1930: 256). These words do, albeit romantically, encapsulate a sense of the experience of time in imprisonment, the sense of ‘lives…suddenly emptied of time markers’ (Cohen and Taylor, 1972: 104). He also describes the acts of resistance he performed including petitioning officials and, of course, his escape. However, his experience of a relatively short period of detention in a prisoner of war camp differed from that of prisoners in England and Wales in 1910 in significant respects. The most obvious was that a prisoner of war camp, with its less formalised structures lacked the characteristics of the ‘Total Institution’ (Goffman, 1961) that attempted to intensely regulate and supervise the activities of prisoners, a feature of prisons at that time. In addition, Churchill’s experience does not encompass all of the pains of imprisonment (Sykes, 1958), although he lost his liberty and complained about the loss of goods and services, particularly books and entertainment, he made no comment about the loss of heterosexual relations, his autonomy was limited to a lesser degree than in total institution, and he did not suffer from the loss of security experienced by prisoners tossed into a sea of offenders in a civilian prison. Churchill’s experiences should not be dismissed out of hand, nor should their significance be exaggerated. For example, inspired by his experiences he increased the availability of visiting lecturers and the performance of concerts, so that each prisoner could attend these every quarter, and he sought to improve libraries so that they were of a similar standard to those in the community. However, this library reform in particular had a limited benefit as at that time, prisoners were only allowed to borrow books after serving 28 days and 81% of prisoners were serving less than a month imprisonment (Forsythe, 1990). Whilst these can be considered positive, they are of secondary importance, and illustration of the limitations of romanticising Churchill’s personal experiences. The second issue that was arguably informed by his personal experiences of imprisonment was his desire to draw a distinction between prisoners whose offences carried an element of moral condemnation, and those whose offences did not. This was pressing due to the increasing number of people imprisoned for ‘political’ offences related to the Irish Home Rule and Suffragette movements. There was an attempt to create a distinguishing classification of offenders in 1898 and Gladstone

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had developed ideas for a policy on this issue. However, it was Churchill who realised this, creating prison rule 243A which recognised political prisoners and allowed them to wear their own clothes, be searched by special officer, exempted them from bathing and haircutting, allowed them to receive the best prison food and have food brought in, they were allowed to exercise in association twice a day, have a supply of books, receive letters and visits once a fortnight, and were allowed to pay for their cells to be cleaned. If this was, indeed, informed by his personal experiences, then it betrays a desire to distance himself from prisoners rather than create a greater intimacy. Following the lobbying of Galsworthy and the dramatic attendance at the performance of Justice, it could have been anticipated that Churchill would abolish separate confinement at the beginning of sentences, particularly as he wrote to Galsworthy after attending the performance stating his; ‘entire sympathy with your general mood’ (Churchill, R., 1969: 1150). However, following discussions with the Prison Commissioners, he limited his ambitious, and even started to rethink whether his radicalism was really the right approach. He decided to reduce separate confinement from three months to one month, but stated to the Permanent Secretary at the Home Office that he was impressed; ‘with the importance of making the first period of prison life a severe disciplinary course, of interposing a hiatus between the world which the convict has left and the public works gang which he is to join’ (cited in Gilbert, 1991: 212). This illustrates official resistance to reform and also the limits of Churchill’s radicalism, casting light on the personal and professional tensions between reform and conservatism. In other areas, Churchill’s conservatism was more apparent. When a private members bill was presented to abolish corporal punishment, he actively blocked it (Radzinowicz and Hood, 1990). He also was robust in his management of Suffragettes, taking a hard line towards the force feeding of hunger strikers. This had been a problem since 1908 and at the end of Gladstone’s period as Home Secretary, there had been a scandal as a result of the conduct of force feeding without medical examination and arising from visceral reports of the brutality involved. Not only did Churchill reject these complaints when he came to office, but he set clear boundaries, first that force feeding would commence after 48 hours, then that it would commence after 24 hours (Addison, 1992). As with his justification for maintaining solitary confinement, he was impressed by the need for discipline and order. Churchill’s reforms of prison conditions expose the conflicts and contradictions both of the time and the man. There was an

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ongoing tension between discipline and welfare, liberalism and conservatism. He was, however, conscious of the limitations of changing prisons internally, in the Prison Vote debate in July 1910, he cautioned: We must not forget that when every material improvement has been effected in prisons, when the temperature has been adjust